Christ of the Freeminers Iron Mountain Mine

How Are Sites Removed From the NPL? EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use. I. What Is the Construction Completion List (CCL)? EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1) any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA’s Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm. J. What Is the Sitewide Ready for Anticipated Use Measure?
The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority EPA places on considering anticipated future land use as part of our remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land users, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to http://www.epa.gov/superfund/programs/recycle/tools/index.html.

List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
BILLING CODE: 6560-50-P

Virginia Statute for Religious Freedom (1786)

Thomas Jefferson

Jefferson drafted the following measure, but it was Madison who secured its adoption by the Virginia legislature in 1786. It is still part of modern Virginia's constitution, and it has not only been copied by other states but was also the basis for the Religion Clauses in the Constitution's Bill of Rights. Both men considered this bill one of the great achievements of their lives, and Jefferson directed that on his tombstone he should not be remembered as president of the United States or for any of the other high offices he held, but as the author of the Declaration of Independence and the Virginia Statute for Religious Freedom, and as the founder of the University of Virginia.

Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Be it enacted by the General Assembly , That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.

Source: W.W. Hening, ed., Statutes at Large of Virginia , vol. 12 (1823): 84-86.

For further reading: William Lee Miller, The First Liberty: Religion and the American Republic (1985); Leonard W. Levy, The Establishment Clause and the First Amendment (1986); Merrill D. Peterson and Robert C. Vaughn, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (1988).

Rule 60. Relief from Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ;

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

A motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

(d) Other Powers to Grant Relief.

(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or

(e) Bills and Writs Abolished.

The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

Karen Jurist, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD-9-1, San Francisco, CA 94105; 415/972-3219.

Rule 71.1 Condemning Real or Personal Property

(a) Applicability of Other Rules

These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise.

(b) Joinder of Properties

The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use.

The complaint must contain a caption as provided in Rule 10(a) . The plaintiff must, however, name as defendants both the property — designated generally by kind, quantity, and location — and at least one owner of some part of or interest in the property.

(E) for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it.

When the action commences, the plaintiff need join as defendants only those persons who have or claim an interest in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be found by a reasonably diligent search of the records, considering both the property's character and value and the interests to be acquired. All others may be made defendants under the designation “Unknown Owners.”

Notice must be served on all defendants as provided in Rule 71.1(d), whether they were named as defendants when the action commenced or were added later. A defendant may answer as provided in Rule 71.1(e). The court, meanwhile, may order any distribution of a deposit that the facts warrant.

In addition to filing the complaint, the plaintiff must give the clerk at least one copy for the defendants' use and additional copies at the request of the clerk or a defendant.

(d) Process.

On filing a complaint, the plaintiff must promptly deliver to the clerk joint or several notices directed to the named defendants. When adding defendants, the plaintiff must deliver to the clerk additional notices directed to the new defendants.

(A) Main Contents . Each notice must name the court, the title of the action, and the defendant to whom it is directed. It must describe the property sufficiently to identify it, but need not describe any property other than that to be taken from the named defendant. The notice must also state:

(v) that the defendant may serve an answer on the plaintiff's attorney within 21 days after being served with the notice;

(vi) that the failure to so serve an answer constitutes consent to the taking and to the court's authority to proceed with the action and fix the compensation; and

(vii) that a defendant who does not serve an answer may file a notice of appearance.

(B) Conclusion . The notice must conclude with the name, telephone number, and e-mail address of the plaintiff's attorney and an address within the district in which the action is brought where the attorney may be served.

(A) Personal Service . When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with Rule 4 .

(i) A defendant may be served by publication only when the plaintiff's attorney files a certificate stating that the attorney believes the defendant cannot be personally served, because after diligent inquiry within the state where the complaint is filed, the defendant's place of residence is still unknown or, if known, that it is beyond the territorial limits of personal service. Service is then made by publishing the notice — once a week for at least 3 successive weeks — in a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation where the property is located. Before the last publication, a copy of the notice must also be mailed to every defendant who cannot be personally served but whose place of residence is then known. Unknown owners may be served by publication in the same manner by a notice addressed to “Unknown Owners.”

(ii) Service by publication is complete on the date of the last publication. The plaintiff's attorney must prove publication and mailing by a certificate, attach a printed copy of the published notice, and mark on the copy the newspaper's name and the dates of publication.

Delivering the notice to the clerk and serving it have the same effect as serving a summons under Rule 4 .

Rule 4(a) (2) governs amending the notice. Rule 4(l) governs proof of service and amending it.

(e) Appearance or Answer.

A defendant that has no objection or defense to the taking of its property may serve a notice of appearance designating the property in which it claims an interest. The defendant must then be given notice of all later proceedings affecting the defendant.

A defendant that has an objection or defense to the taking must serve an answer within 21 days after being served with the notice. The answer must:

A defendant waives all objections and defenses not stated in its answer. No other pleading or motion asserting an additional objection or defense is allowed. But at the trial on compensation, a defendant — whether or not it has previously appeared or answered — may present evidence on the amount of compensation to be paid and may share in the award.

(f) Amending Pleadings.

Without leave of court, the plaintiff may — as often as it wants — amend the complaint at any time before the trial on compensation. But no amendment may be made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b) , on every affected party who has appeared and, as provided in Rule 71.1(d), on every affected party who has not appeared. In addition, the plaintiff must give the clerk at least one copy of each amendment for the defendants' use, and additional copies at the request of the clerk or a defendant. A defendant may appear or answer in the time and manner and with the same effect as provided in Rule 71.1(e).

(g) Substituting Parties.

If a defendant dies, becomes incompetent, or transfers an interest after being joined, the court may, on motion and notice of hearing, order that the proper party be substituted. Service of the motion and notice on a nonparty must be made as provided in Rule 71.1(d)(3).

(h) Trial of the Issues.

In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined:

(A) by any tribunal specially constituted by a federal statute to determine compensation; or

(B) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission.

(A) Reasons for Appointing. If a party has demanded a jury, the court may instead appoint a three-person commission to determine compensation because of the character, location, or quantity of the property to be condemned or for other just reasons.

(B) Alternate Commissioners. The court may appoint up to two additional persons to serve as alternate commissioners to hear the case and replace commissioners who, before a decision is filed, the court finds unable or disqualified to perform their duties. Once the commission renders its final decision, the court must discharge any alternate who has not replaced a commissioner.

(C) Examining the Prospective Commissioners. Before making its appointments, the court must advise the parties of the identity and qualifications of each prospective commissioner and alternate, and may permit the parties to examine them. The parties may not suggest appointees, but for good cause may object to a prospective commissioner or alternate.

(D) Commission's Powers and Report. A commission has the powers of a master under Rule 53(c) . Its action and report are determined by a majority. Rule 53(d) , (e) , and (f) apply to its action and report.

(i) Dismissal of the Action or a Defendant.

(A) By the Plaintiff . If no compensation hearing on a piece of property has begun, and if the plaintiff has not acquired title or a lesser interest or taken possession, the plaintiff may, without a court order, dismiss the action as to that property by filing a notice of dismissal briefly describing the property.

(B) By Stipulation . Before a judgment is entered vesting the plaintiff with title or a lesser interest in or possession of property, the plaintiff and affected defendants may, without a court order, dismiss the action in whole or in part by filing a stipulation of dismissal. And if the parties so stipulate, the court may vacate a judgment already entered.

(C) By Court Order . At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken.

The court may at any time dismiss a defendant who was unnecessarily or improperly joined.

A dismissal is without prejudice unless otherwise stated in the notice, stipulation, or court order.

(j) Deposit and Its Distribution.

The plaintiff must deposit with the court any money required by law as a condition to the exercise of eminent domain and may make a deposit when allowed by statute.

After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation. If the compensation finally awarded to a defendant exceeds the amount distributed to that defendant, the court must enter judgment against the plaintiff for the deficiency. If the compensation awarded to a defendant is less than the amount distributed to that defendant, the court must enter judgment against that defendant for the overpayment.

(k) Condemnation Under a State's Power of Eminent Domain.

This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by jury — or for trying the issue of compensation by jury or commission or both — that law governs.

(l) Costs.

Why American People of Faith Are Supporting the EPA

CERCLA Liability and Local Government Acquisitions and Other Activities

What are the requirements for the third party defense or innocent landowner defense?
CERCLA § 107(b)(3) provides a “third party” affirmative defense to CERCLA liability for any owner that can prove, by the preponderance of the evidence, that the contamination was caused solely by the act or omission of a third party whose act or omission did not occur “in connection with a contractual relationship.” Moreover, an entity asserting the CERCLA § 107(b)(3) defense must show that: a) it exercised due care with respect to the contamination; and b) it took precautions against foreseeable acts or omissions, and the consequences thereof by the third party that caused the contamination.

Entering onto Land, for Inspection and Other Purposes

Rule 34.

Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General.

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Procedure.

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(A) Time to Respond . The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item . For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

(D) Responding to a Request for Production of Electronically Stored Information . The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information . Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

As provided in Rule 45 , a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

Rule 64. Seizing a Person or Property

(a) Remedies Under State Law — In General.

At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.

(b) Specific Kinds of Remedies.

The remedies available under this rule include the following — however designated and regardless of whether state procedure requires an independent action:

Rule 70. Enforcing a Judgment for a Specific Act

(a) Party's Failure to Act; Ordering Another to Act.

If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done — at the disobedient party's expense — by another person appointed by the court. When done, the act has the same effect as if done by the party.

(b) Vesting Title.

If the real or personal property is within the district, the court — instead of ordering a conveyance — may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.

On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.

(d) Obtaining a Writ of Execution or Assistance.

On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.

(e) Holding in Contempt.

Rule 72. Magistrate Judges: Pretrial Order

(a) Nondispositive Matters.

When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.

(b) Dispositive Motions and Prisoner Petitions.

A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement. A record must be made of all evidentiary proceedings and may, at the magistrate judge's discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must promptly mail a copy to each party.

Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Rule 73. Magistrate Judges: Trial by Consent; Appeal

(a) Trial by Consent.

When authorized under 28 U.S.C. § 636 (c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. § 636(c)(5).

(b) Consent Procedure.

When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. § 636 (c) . To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a party's response to the clerk's notice only if all parties have consented to the referral.

A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge's availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.

On its own for good cause — or when a party shows extraordinary circumstances — the district judge may vacate a referral to a magistrate judge under this rule.

In accordance with 28 U.S.C. § 636 (c)(3), an appeal from a judgment entered at a magistrate judge's direction may be taken to the court of appeals as would any other appeal from a district-court judgment.

Rule 23. Class Actions

(a) Prerequisites.

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Types of Class Actions.

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(A) Time to Issue . At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B) Defining the Class; Appointing Class Counsel . An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

(C) Altering or Amending the Order . An order that grants or denies class certification may be altered or amended before final judgment.

(A) For (b)(1) or (b)(2) Classes . For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.

(B) For (b)(3) Classes . For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:

(iv) that a class member may enter an appearance through an attorney if the member so desires;

(v) that the court will exclude from the class any member who requests exclusion;

(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and

(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.

When appropriate, an action may be brought or maintained as a class action with respect to particular issues.

When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.

(d) Conducting the Action.

(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;

(B) require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members of:

(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;

(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or

An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16 .

(e) Settlement, Voluntary Dismissal, or Compromise.

The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.

(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.

(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.

(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.

(f) Appeals.

A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

(g) Class Counsel.

Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:

(i) the work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;

(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;

(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and

When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.

The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

(h) Attorney's Fees and Nontaxable Costs.

In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:

(1) A claim for an award must be made by motion under Rule 54(d) (2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(2) A class member, or a party from whom payment is sought, may object to the motion.

(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a) .

(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d) (2)(D).

Rule 24. Intervention

(a) Intervention of Right.

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.

(B) has a claim or defense that shares with the main action a common question of law or fact.

On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

A motion to intervene must be served on the parties as provided in Rule 5 . The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

Water

Section 1475(a) would block implementation of protections under the Endangered Species Act for fish in the San Francisco Bay-Delta ecosystem, including winter run Chinook salmon, spring run Chinook salmon, steelhead, green sturgeon and delta smelt. This measure is designed to increase the delivery of water subsidized by federal taxpayers, at the expense of California cities, other farmers, the health of the San Francisco Bay-Delta, and especially the California salmon fishing industry.

Section 1747 would halt EPA's determination of which waters remain protected by the Clean Water Act in the wake of Rapanos.

An amendment offered by Rep. Griffith (R-VA) , and passed 235-185 , would block EPA and other agencies from conducting meaningful oversight of mountaintop removal coal mining operations.

An amendment offered by Rep. Goodlatte (R-VA) , and passed 230-195 , would block EPA from implementing a plan to clean up the Chesapeake Bay.

An amendment offered by Rep. Johnson (R-OH) , and passed 239-186 , would block the Department of the Interior from issuing new regulations to limit stream damage from surface coal mining.

An amendment offered by Rep. Jones (R-NC), and passed 259 – 159 , would prohibit the National Oceanic and Atmospheric Administration (NOAA) from developing or approving new catch share programs to limit overfishing.

An amendment offered by Rep. McKinley (R-WV) , and passed 240-182 , would effectively strip EPA of its authority under the Clean Water Act to prohibit or restrict certain discharges that would have an “unacceptable adverse effect” on water, fish or wildlife.

An amendment offered by Rep. McKinley (R-WV) , and passed 239-183 , would prevent EPA from establishing minimum standards for the disposal and handling of coal ash as a hazardous waste. Coal ash is a well-documented threat to human health and the environment, and due to largely unregulated dumping, poses a threat to our waterways and drinking water.

An amendment offered by Rep. Rooney (R-FL) , and passed 237-189 , would block a plan to clean up waterways in Florida.

Air/ Climate

Section 1746 would prevent the Environmental Protection Agency (EPA) from proposing, implementing or enforcing any regulations on stationary sources of greenhouse gas emissions because of concerns about climate change.

An amendment offered by Rep. Carter (R-TX ), and passed 250-177 , would prevent EPA from limiting toxic emissions from cement plants. The amendment would block the EPA's efforts to keep 16,000 pounds of mercury a year out of the air.

An amendment offered by Rep. Noem (R-SD), and passed 255-168 , would block EPA from updating limits on the emission of particulates -- basically, soot .

An amendment offered by Rep. Poe (R-TX) , and passed 249-177 , would block EPA from limiting emissions of greenhouse gases from any stationary source for any reason.

An amendment offered by Rep. Young (R-AK), and passed 243-185 , would block EPA from fully applying the Clean Air Act to oil drilling activities in Alaska. The EPA's Environmental Appeals Board recently ruled that a permit issued for Shell Oil to drill in the Arctic did not comply with the Clean Air Act. This amendment would prevent the Board from taking any similar actions for the rest of the fiscal year.

Wildlife/ Lands

Section 1713 would direct the Secretary of the Interior to reinstate a 2009 rule delisting wolves under the Endangered Species Act within portions of the northern Rockies within 60 days of the bill's enactment and insulates the action from judicial review. This provision would overturn a federal court decision and establish a dangerous precedent of legislatively delisting a species.

Section 1778 would block the reinstatement of a policy that allows the Department of the Interior to protect the wilderness qualities of lands pending a Congressional wilderness designation.

An amendment offered by Rep. Herger (R-CA), and passed 227 - 197 , would stop implementation of the Forest Service's Travel Management Rule, to develop a more efficient, more manageable system of roads through our national forests.

Environmental Justice

An amendment offered by Rep. Lummis (R- WY), and passed 232- 197, would make it harder to sue the government to enforce environmental laws. The amendment would block the government from paying the legal fees of individuals or citizen groups that successfully sue it. Since the amendment does not change the underlying law, it basically would require the government to default on its obligation to pay the fees.

CONTACT:
Cathy Milbourn
Milbourn.cathy@epa.gov
202-564-7859
202-564-4355

FOR IMMEDIATE RELEASE
March 8, 2011

EPA Updates Database on Health and Environmental Impacts of Electricity Generation

User friendly web tool allows Americans to search for power providers by zip code

WASHINGTON -- The U.S. Environmental Protection Agency updated its database that helps Americans understand the health and environmental impacts of electricity generation. EPA's Emissions and Generation Integrated Resource Database (eGRID) and Power Profiler now include data from 2007, an update from 2005.

eGRID is a comprehensive database of emissions from almost all electric power generated in the United States. The data are widely used to show the impacts of electricity generation as well as the benefits from reduced electricity demand. eGRID contains emissions information for nitrogen oxides (NO x ) and sulfur dioxide (SO 2 ) which contribute to unhealthy air quality and acid rain in many parts of the country. eGRID also contains emissions information for carbon dioxide (CO 2 ), methane (CH 4 ), and nitrous oxide (N 2 O), which are greenhouse gases that contribute to climate change.

Power Profiler is a user friendly online application that uses eGRID data to show air emissions information and the type of electricity generation, such as coal or nuclear, in various regions of the country. By simply entering a zip code and selecting a utility, users can learn more about where their electricity comes from and what impact it has on air quality and the environment.

More information about eGRID: http://www.epa.gov/egrid

More information about Power Profiler: http://www.epa.gov/powerprofiler

Reid says Senate Republicans blocking vote on their own budget plan

Senate Majority Leader Harry Reid (D-Nev.) said Senate Republicans have violated their agreement to hold a test-vote on the House GOP's 2011 budget plan that would slash $57.5 billion in government spending.

“They don't want to live up to the agreement that was made,” Reid said in comments on the Senate floor. “We agreed, I repeat, to hold a vote on H.R. 1, the Republican plan that they moved to the Senate floor themselves.”

Reid said GOP leaders, including Senate Minority Leader Mitch McConnell (R-Ky.) and Speaker John Boehner (R-Ohio) agreed to the vote during a meeting last week with Reid, House Minority Leader Nancy Pelosi (D-Calif.), and Vice President Biden. The parties also agreed to vote on the Democratic spending proposal that would cut just $6.5 billion in spending.

“There is no question that that was the agreement made,” said Reid. “No question that that was the deal. But now the Republicans are reneging on that deal. They don't want to vote on their own plan.”

A GOP aide said he expected votes on the spending measures to take place Tuesday evening or Wednesday. The aide said Reid is making accusations to distract people from criticism that Sen. Joe Manchin (D-W.Va.) leveled at Democratic leaders earlier in the morning for not taking a more aggressive approach to reducing spending.

Reid insisted in his comments that he would force a vote on the legislation, whether Republicans liked it or not.

“Well they are going to have a chance to vote on H.R. 1,” Reid said. “I may have to jump through all the procedural hoops to do it in spite of the fact that they made a deal. We are going to do that. The Republicans over here are going to have to vote on that terrible bill. They are going to have to vote on it."

Superfund: Information on the Nature and Costs of Cleanup Activities at Three Landfills in the Gulf Coast Region

The Environmental Protection Agency (EPA) estimates that one in four Americans lives within 3 miles of a contaminated site, many of which pose serious risks to human health and the environment. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) provided the federal government with authority to respond to releases or threatened releases of hazardous substances and created a trust fund to provide for certain cleanup activities. Under CERCLA, EPA established the Superfund program to address the threats that contaminated sites pose. Although EPA has paid for the cleanup of many of these sites through the Superfund program, funding for these cleanups has diminished in recent years. In 2010, we reported that EPA's estimated costs to clean up existing contaminated sites exceed the Superfund program's current funding levels and that some sites have not received sufficient funding for cleanup to proceed in the most cost-efficient manner. Additionally, in July 2009, we reported that EPA does not collect sufficient information on the cost of cleanup activities at Superfund sites and recommended, among other things, that EPA assess and improve the data it collects on the status and cost of cleanups. EPA coordinates the cleanup of Superfund sites by identifying sites potentially requiring cleanup action and placing eligible sites on its National Priorities List (NPL). EPA may compel the parties responsible for contaminating these sites to clean them up, or the agency may, using resources from the trust fund established by CERCLA, conduct cleanups itself and seek reimbursement from responsible parties. In some cases, EPA may not be able to obtain reimbursement because the agency cannot identify a responsible party or the responsible party or parties may be insolvent or may no longer exist. One category of contaminated sites--landfills and other waste disposal facilities--made up more than one-third of the 1,397 sites EPA placed on the NPL from 1983 through 2007, and EPA's expenditures at these 511 sites totaled about $3.6 billion through fiscal year 2007. According to EPA, landfill sites on the NPL generally share similar characteristics and present similar threats to the environment. For example, these sites generally exhibit contamination in various media, such as soil, surface water, or groundwater, and many landfills at Superfund sites contain hazardous waste that may contaminate nearby soil or water. Further, some have argued that landfills used for the disposal of debris created by disasters may also contain hazardous waste that could have long-term, negative environmental impacts. Consequently, concerns have been raised by various studies and environmental groups about the potential for such landfills to become Superfund sites. For instance, in the aftermath of Hurricane Katrina, a Louisiana emergency order authorized some potentially hazardous materials to be disposed of in landfills permitted to receive construction and demolition debris rather than in landfills with liners approved for such waste. Studies by a Louisiana State University research institute and an environmental engineering firm found that these categories of waste can introduce hazardous materials into landfills, increasing the likelihood of pollution. In this context, Congress asked us to review issues related to the cost to clean up the Agriculture Street Landfill Superfund site, which received debris from Hurricane Betsy in 1965, and other Superfund sites involving landfills in the Gulf Coast region where cleanup has been completed. Our objectives were to determine (1) what is known about the nature and costs of the cleanup activities at Superfund landfill sites and (2) the costs to clean up the Agriculture Street Landfill site and two additional selected Superfund landfill sites in the Gulf Coast region, and the key factors that influenced these costs.

While cleanup activities at Superfund landfills depend largely on the nature and extent of the contamination at each site, these activities generally include extraction, treatment, and containment. Extraction is the removal of contaminated substances from a site. At landfill sites, extraction may involve excavating contaminated soil and other landfill contents from the site and disposing of these materials at an off-site facility that is permitted to receive such products. According to EPA, extraction is the most expensive cleanup approach used at Superfund landfill sites. Treatment is the reduction of contaminated substances at a site and involves processing contaminated media, either on- or off-site, to reduce the toxicity, mobility, or volume of contamination. For example, EPA and responsible parties may remove groundwater from a Superfund site and chemically process it to remove contaminants at an off-site facility, or they may install a system at the site to treat the contaminated water in place. While treatment is a lower-cost alternative to extraction, it is a high-cost cleanup approach. Finally, containment involves leaving contaminated media on-site and installing measures to prevent human exposure to hazardous substances. For instance, containment at a Superfund landfill site may include installing a cover over landfill contents and establishing institutional controls, such as legal access restrictions, to limit exposure to the contaminated material. Containment is generally the least expensive method of addressing Superfund landfills. Limited data are available on the actual costs of cleanup activities conducted at Superfund landfill sites for two main reasons. First, EPA does not maintain a central tracking system for the costs of such cleanup activities. While EPA tracks its expenditures at Superfund sites, this information does not include the cost associated with each cleanup activity conducted at a site. Rather, EPA's Superfund cost information focuses on the total cost of each contract under which multiple cleanup activities may have been conducted. Second, cost data are limited because no requirements exist for responsible parties--including private companies, states, and local governments--to maintain or disclose their cleanup costs at Superfund sites. Private companies generally consider their cleanup costs as information that they have a right to keep confidential. While state and local governments are generally required to collect cleanup cost data under public accounting standards, these standards generally do not address maintenance of the data. While only limited cleanup cost data are available, we estimated that the costs to clean up three Superfund landfill sites in the Gulf Coast region--the Agriculture Street, Beulah, and Taylor Road landfill sites--ranged from about $13 million to about $55 million. This range is largely the result of differences among the sites in such factors as site geology and proximity to residential areas.

Last Friday the CFTC released their monthly Bank Participation Report (BPR) which revealed a startling statistic. After 3 months of desperately trying to cover their gigantic short position the US Banks that control the price of silver decided to go back to their reckless shorting routine...BY A HUGE AMOUNT! Here's the numbers and the link to the CFTC BPR postings:

Over the last 3 months it really looked like they were trying to close out their gigantic short position before the Position Limit Rule goes into effect on March 28, 2011. That was until the latest BPR was posted. Just look at the increase in the US Bank silver short position...

That is a STUNNING amount of new shorts added during the month of February when the price of silver actually managed to RISE 25%. It is important to understand that IF these new shorts were not placed on COMEX silver then THE PRICE WOULD HAVE EXPLODED TO OVER $50 OR EVEN $100 PER OUNCE!

Novartis was created in 1996 from the merger of Ciba-Geigy and Sandoz Laboratories , both Swiss companies with long histories. Ciba-Geigy was formed in 1970 by the merger of J. R. Geigy Ltd (founded in Basel in 1758) and CIBA (founded in Basel in 1859). Combining the histories of the merger partners, the company's effective history spans 250 years. [ 14 ]

Ciba-Geigy

In 1859, Alexander Clavel (1805 – 1873) took up the production of fuchsine in his factory for silk -dyeing works in Basel. In 1864, a new site for the production of synthetic dyes was constructed, and in 1873, Clavel sold his dye factory to the new company Bindschedler and Busch . In 1884, Bindschedler and Busch was transformed into a joint-stock company with the name "Gesellschaft für Chemische Industrie Basel" (Company for Chemical Industry Basel). The acronym , CIBA , was adopted as the company's name in 1945.

In 1925, J. R. Geigy Ltd. began producing textile auxiliaries, [ clarification needed ] an activity which Ciba took up in 1928.

CIBA and Geigy merged in 1971 to form Ciba-Geigy Ltd. . This company merged with Sandoz in 1996, with the pharmaceutical divisions of both staying together to form Novartis. Other Ciba-Geigy businesses being spun off as independent companies.

Sandoz

The Chemiefirma Kern und Sandoz ("Kern and Sandoz Chemistry Firm") was founded in 1886 by Alfred Kern (1850–1893) and Edouard Sandoz (1853–1928). The first dyes manufactured by them were alizarine blue and auramine . After Kern's death, the partnership became the corporation Chemische Fabrik vormals Sandoz in 1895. The company began producing the fever-reducing drug antipyrin in the same year. In 1899, the company began producing the sugar substitute, saccharin . Further pharmaceutical research began in 1917 under Arthur Stoll (1887–1971), who is the founder of Sandoz's pharmaceutical department in 1917 . In 1918, Arthur Stoll isolates ergotamine from ergot; the substance is eventually used to treat migraine and headeaches and is introduced under the trade name Gynergen in 1921.

Between the World Wars, Gynergen (1921) and Calcium-Sandoz (1929) were brought to market. Sandoz also produced chemicals for textiles , paper , and leather , beginning in 1929. In 1939, the company began producing agricultural chemicals.

The psychedelic effects of lysergic acid diethylamide (LSD) were discovered at the Sandoz laboratories in 1943 by Arthur Stoll and Albert Hofmann ( patent by Stoll and Hofmann in USA on Mar. 23, 1948 ). Sandoz began clinical trials and marketed the substance, from 1947 through the mid 1960s, under the name Delysid as a psychiatric drug, thought useful for treating a wide variety of mental ailments , ranging from alcoholism to sexual deviancy . Sandoz suggested in its marketing literature that psychiatrists take LSD themselves, [ 16 ] to gain a better subjective understanding of the schizophrenic experience, and many did exactly that and so did other scientific researchers. For several years, the psychedelic drugs also were called " psychotomimetic " because they were thought to mimic psychosis . Later research caused this term to be abandoned, as neuroscientists gained a better understanding of psychoses, including schizophrenia. Research on LSD peaked in the 1950s and early 1960s. Sandoz withdrew the drug from the market in the mid-1960s. The drug became a cultural novelty of the 1960s after psychologist Timothy Leary at Harvard University began to promulgate its use for recreational and spiritual experiences among the general public.

On 1 November 1986, a fire broke out in a production plant storage room, which led to Sandoz chemical spill and a large amount of pesticide being released into the upper Rhine river. This exposure killed many fish and other aquatic life.

In 1995, Sandoz spun off its specialty chemicals business to form Clariant . Subsequently, in 1997, Clariant merged with the specialty chemicals business that was spun off from Hoechst AG in Germany .

In 2005, Sandoz expanded significantly though the acquisition of Hexal , one of Germany's leading generic drug companies, and Eon Labs , a fast-growing United States generic pharmaceutical company.

"Sandoz" continues to be used as a Novartis generic drug brand (see below for details) .

After the merger

After the merger, Novartis reorganized its operating units and spun out its chemical activities as Ciba Specialty Chemicals (now a part of BASF ).

In 1998, the company made headlines with its biotechnology licensing agreement with the University of California at Berkeley Department of Plant and Microbial Biology . Critics of the agreement expressed concern over prospects that the agreement would diminish academic objectivity, or lead to the commercialization of genetically modified plants. The agreement expired in 2003.

In 2003, Novartis created a subsidiary that bundles its generic drug production, reusing the predecessor brand name of Sandoz. [ 17 ]

In 2005, Novartis introduced Certican ( Everolimus ), an immunosuppressant, and in October 2006 began marketing Telbivudine , a new antiviral drug for hepatitis B .

On 20 April 2006, Novartis acquired the California-based Chiron Corporation . Chiron formerly was divided into three units: Chiron Vaccines, Chiron Blood Testing, and Chiron BioPharmaceuticals, to be integrated into Novartis Pharmaceuticals. Chiron Vaccines and Chiron Blood Testing now are combined to form Novartis Vaccines and Diagnostics.

The ongoing Basel Campus Project has the aim to transform the St. Johann site - Novartis headquarters in Basel - "from an industrial complex to a place of innovation, knowledge, and encounter". [ 18 ]

On 12 October 2009, Novartis has entered into an agreement for exclusive US and Canadian rights to Fanapt(iloperidone), a new oral medication that is approved by the U.S. Food and Drug Administration (FDA) for the acute treatment of adults with schizophrenia. [ 19 ]

On 6 November 2009, Novartis reached an agreement to acquire an 85% stake in the Chinese vaccines company Zhejiang Tianyuan Bio-Pharmaceutical Co., Ltd. as part of a strategic initiative to build a vaccines industry leader in this country and expand the Group's limited presence in this fast-growing market segment. This proposed acquisition will require government and regulatory approvals in China. [ 20 ]

On 4 January 2010, Novartis offered to pay US $39.3 billion to fully acquire Alcon , the world's largest eye-care company, including a majority stake held by Nestlé . Novartis had bought 25% of Alcon in 2008. [ 21 ]

On 11 March 2010, Novartis settled their patent suit in the US District Court for the District of New Jersey with IntelliPharmaCeutics International, Ltd. , a Canada-based specialty pharmaceutical company, and its licensee Par Pharmaceutical Inc. over a generic version of the attention deficit hyperactivity disorder drug Focalin XR (dexmethylphenidate hydrochloride). [ 22 ]

Bayer CropScience has products in crop protection and non-agricultural pest control. It also has activities in seeds and plant traits. [ 1 ]

In 2002 Bayer AG acquired Aventis CropScience and fused it with their own agrochemicals division (Bayer Pflanzenschutz or "Crop Protection") to form Bayer CropScience. The company is now one of the world's leading innovative crop science companies in the areas of crop protection (i.e. pesticides ), non- agricultural pest control, seeds and plant biotechnology . In addition to conventional agrochemical business it is involved in genetic engineering of food . The Belgian biotech company Plant Genetic Systems , became part of the company by the acquisition of Aventis CropScience.

FROM THE OFFICE OF THE INSPECTOR GENERAL:

EPA does not enforce a coherent program of position management to assure the efficient and effective use of its workforce. While some organizational elements have independently established programs to control their resources, there is no Agency-wide effort to ensure that personnel are put to the best use. Prior to April 2010, EPA had the Position Management and Control Manual, which required an Agency-wide program. However this manual was not enforced and in April 2010 it was cancelled without replacement. According to the cancellation memorandum, the manual was eliminated because Office of Administration and Resources Management (OARM) officials believed EPA had other mechanisms in place to appropriately manage and control its positions. However, the other mechanisms do not provide similar effects, controls, or documentation. Without an Agency-wide position management program, EPA leadership lacks reasonable assurance that it is using personnel in an effective and efficient manner to achieve mission results.

Related Internal Control Requirements
Besides the requirements specific to position management that were in the 3150 Manual, EPA must comply with a variety of more general requirements about internal controls. These include:
1. Federal Managers’ Financial Integrity Act (FMFIA) requires agencies to establish internal accounting and administrative controls that comply with standards established by the Comptroller General. It also requires an annual evaluation (and related statement) on whether the agency’s internal controls comply with specified standards and, if not, requires the agency to identify material weaknesses and plans to correct them.
2. Office of Management and Budget (OMB) Circular A-123, Management’s Responsibility for Internal Control, implements FMFIA. OMB Circular A-123 states that the internal control activities developed and maintained by management must comply with standards related to control environment, risk assessment, control activities, information and communication, and monitoring. Additionally, it specifies requirements for conducting assessments of internal controls.
3. EPA Records Management Policy (CIO 2155.1) implements the Federal Records Act of 1950, which requires all federal agencies to make and preserve records that document their organization, function, policies, decisions, procedures, and essential transactions. These records are public property and must be managed according to applicable laws and regulations. Thus, among other things, EPA must create, receive, and maintain official records providing adequate and proper evidence of Agency activities. Such records would include documentation of position management program activities.

EPA Cancelled Its Position Management Directive
On April 2, 2010, EPA cancelled the 3150 Manual, its written procedure on managing the workforce to accomplish the assigned mission as effectively and economically as possible. OARM staff believed position management was adequately addressed by other activities. However, the basis for that belief is undocumented.
On December 2, 2009, the Acting Deputy Director, OHR, stated that the FTE allocation process, workforce planning, and classification are the three parts of position management. However, EPA’s cancellation order, signed by the Acting Director, OHR, stated that OHR staff believed budgeting, strategic workforce planning, and strategic succession planning mechanisms allow it to appropriately manage and control positions. Further, OARM did not provide analysis or documentation of how these mechanisms allow it to appropriately manage and control positions. As described below, alternate activities do not provide similar effects, controls, or documentation as those provided by the process required by the 3150 Manual, or provide assurance that the workforce is being used efficiently and effectively.

Conclusion
EPA lacks reasonable assurance that program and regional offices are employing their staff resources effectively and efficiently. Effective resource management is essential to accomplish EPA’s mission to protect human health and the environment. EPA lacks an Agency-level program for effectively managing positions to assist in accomplishing its strategic goals and initiatives. Managing positions in a coherent and consistent program would provide EPA leadership with the tools it needs to make informed decisions about staff resources. Such a program would also assure Agency management that the workforce was used efficiently and effectively.

Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. Please consider our response to your comments and provide a final response, with milestone dates as appropriate. Your response will be posted on the IMMI public website, along with our memorandum commenting on your response. Your response should be provided as an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want to be released to the public; if your response contains such data, you should identify the data for redaction or removal. We have no objections to the further release of this report to the public. We will post this report to our website at http://www.ironmountainmine.com/
If you or your staff have any questions regarding this report, please contact John Hutchens,

EMERGENCY COMMAND OFFICER - PRINCIPALS' INSPECTOR GENERAL; 925-878-9167 or john@ironmountainmine.com

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a) Motion for an Order Compelling Disclosure or Discovery.

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.

(A) To Compel Disclosure . If a party fails to make a disclosure required by Rule 26(a) , any other party may move to compel disclosure and for appropriate sanctions.

(B) To Compel a Discovery Response . A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);

(iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34 .

(C) Related to a Deposition . When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.

For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing) . If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or

(B) If the Motion Is Denied . If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

(C) If the Motion Is Granted in Part and Denied in Part . If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.

(b) Failure to Comply with a Court Order.

If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.

(A) For Not Obeying a Discovery Order . If a party or a party's officer, director, or managing agent — or a witness designated under Rule 30(b) (6) or 31(a) (4) — fails to obey an order to provide or permit discovery, including an order under Rule 26(f) , 35 , or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

(B) For Not Producing a Person for Examination . If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.

(C) Payment of Expenses . Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e) , the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(A) Motion; Grounds for Sanctions . The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party's officer, director, or managing agent — or a person designated under Rule 30(b) (6) or 31(a) (4) — fails, after being served with proper notice, to appear for that person's deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34 , fails to serve its answers, objections, or written response.

(B) Certification . A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c) .

Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

(e) Failure to Provide Electronically Stored Information.

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(f) Failure to Participate in Framing a Discovery Plan.

If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) , the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.

Depositions to Perpetuate Testimony

(a) Before an Action Is Filed.

A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4 . If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.

If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35 . A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.

(b) Pending Appeal.

The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.

The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:

(A) the name, address, and expected substance of the testimony of each deponent; and

If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35 . The depositions may be taken and used as any other deposition taken in a pending district-court action.

This rule does not limit a court's power to entertain an action to perpetuate testimony.

§ 636. Jurisdiction, powers, and temporary assignment

How Current is This? (a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law— (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts; (2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions; (3) the power to conduct trials under section 3401 , title 18 , United States Code, in conformity with and subject to the limitations of that section; (4) the power to enter a sentence for a petty offense; and (5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have consented. (b) (1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial [1] relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. (2) A judge may designate a magistrate judge to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate judge to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. (3) A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. (4) Each district court shall establish rules pursuant to which the magistrate judges shall discharge their duties. (c) Notwithstanding any provision of law to the contrary— (1) Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other part-time magistrate judge may exercise such jurisdiction, if such magistrate judge meets the bar membership requirements set forth in section 631 (b)(1) and the chief judge of the district court certifies that a full-time magistrate judge is not reasonably available in accordance with guidelines established by the judicial council of the circuit. When there is more than one judge of a district court, designation under this paragraph shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. (2) If a magistrate judge is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, either the district court judge or the magistrate judge may again advise the parties of the availability of the magistrate judge, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties' consent. (3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be construed as a limitation of any party's right to seek review by the Supreme Court of the United States. (4) The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under this subsection. (5) The magistrate judge shall, subject to guidelines of the Judicial Conference, determine whether the record taken pursuant to this section shall be taken by electronic sound recording, by a court reporter, or by other means. (d) The practice and procedure for the trial of cases before officers serving under this chapter shall conform to rules promulgated by the Supreme Court pursuant to section 2072 of this title. (e) Contempt Authority.— (1) In general.— A United States magistrate judge serving under this chapter shall have within the territorial jurisdiction prescribed by the appointment of such magistrate judge the power to exercise contempt authority as set forth in this subsection. (2) Summary criminal contempt authority.— A magistrate judge shall have the power to punish summarily by fine or imprisonment, or both, such contempt of the authority of such magistrate judge constituting misbehavior of any person in the magistrate judge's presence so as to obstruct the administration of justice. The order of contempt shall be issued under the Federal Rules of Criminal Procedure. (3) Additional criminal contempt authority in civil consent and misdemeanor cases.— In any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, and in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , the magistrate judge shall have the power to punish, by fine or imprisonment, or both, criminal contempt constituting disobedience or resistance to the magistrate judge's lawful writ, process, order, rule, decree, or command. Disposition of such contempt shall be conducted upon notice and hearing under the Federal Rules of Criminal Procedure. (4) Civil contempt authority in civil consent and misdemeanor cases.— In any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, and in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , the magistrate judge may exercise the civil contempt authority of the district court. This paragraph shall not be construed to limit the authority of a magistrate judge to order sanctions under any other statute, the Federal Rules of Civil Procedure, or the Federal Rules of Criminal Procedure. (5) Criminal contempt penalties.— The sentence imposed by a magistrate judge for any criminal contempt provided for in paragraphs (2) and (3) shall not exceed the penalties for a Class C misdemeanor as set forth in sections 3581 (b)(8) and 3571 (b)(6) of title 18 . (6) Certification of other contempts to the district court.— Upon the commission of any such act— (A) in any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, or in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , that may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection, or (B) in any other case or proceeding under subsection (a) or (b) of this section, or any other statute, where— (i) the act committed in the magistrate judge's presence may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection, (ii) the act that constitutes a criminal contempt occurs outside the presence of the magistrate judge, or (iii) the act constitutes a civil contempt, the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. (7) Appeals of magistrate judge contempt orders.— The appeal of an order of contempt under this subsection shall be made to the court of appeals in cases proceeding under subsection (c) of this section. The appeal of any other order of contempt issued under this section shall be made to the district court. (f) In an emergency and upon the concurrence of the chief judges of the districts involved, a United States magistrate judge may be temporarily assigned to perform any of the duties specified in subsection (a), (b), or (c) of this section in a judicial district other than the judicial district for which he has been appointed. No magistrate judge shall perform any of such duties in a district to which he has been temporarily assigned until an order has been issued by the chief judge of such district specifying (1) the emergency by reason of which he has been transferred, (2) the duration of his assignment, and (3) the duties which he is authorized to perform. A magistrate judge so assigned shall not be entitled to additional compensation but shall be reimbursed for actual and necessary expenses incurred in the performance of his duties in accordance with section 635 . (g) A United States magistrate judge may perform the verification function required by section 4107 of title 18 , United States Code. A magistrate judge may be assigned by a judge of any United States district court to perform the verification required by section 4108 and the appointment of counsel authorized by section 4109 of title 18 , United States Code, and may perform such functions beyond the territorial limits of the United States. A magistrate judge assigned such functions shall have no authority to perform any other function within the territory of a foreign country. (h) A United States magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate judge in any judicial district by the judicial council of the circuit within which such district is located. Upon recall, a magistrate judge may receive a salary for such service in accordance with regulations promulgated by the Judicial Conference, subject to the restrictions on the payment of an annuity set forth in section 377 of this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such magistrate judge. The requirements set forth in subsections (a), (b)(3), and (d) of section 631 , and paragraph (1) of subsection (b) of such section to the extent such paragraph requires membership of the bar of the location in which an individual is to serve as a magistrate judge, shall not apply to the recall of a retired magistrate judge under this subsection or section 375 of this title. Any other requirement set forth in section 631 (b) shall apply to the recall of a retired magistrate judge under this subsection or section 375 of this title unless such retired magistrate judge met such requirement upon appointment or reappointment as a magistrate judge under section 631 .

Local Government Issue CERCLA Provision Relevant EPA Documents or Guidance (if any)
Involuntary Acquisition
§ 101(20)(D)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997)
• Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily (EPA/DOJ, 9/22/2005)
• Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (EPA/OSRE/OSWER, 10/20/1995)
• Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities (EPA/OSRE, 12/31/1995)
Third Party and Innocent Landowner Defenses
§§ 107(b)(3), 101(35)(A)(ii)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997) • Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
Bona Fide Prospective Purchaser
§ 101(40) and § 107(r)
• Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
• Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (OSRE/USDOJ 11/27/2006)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA § 101(40) to Tenants (OSRE/OSWER 1/19/2009)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA Section 101(40) to Tenants: Frequently Asked Questions (OSRE 11/1/2009)
Windfall Liens
§ 107(r)
• Interim Enforcement Discretion Policy concerning Windfall Liens Under Section 107(r) of CERCLA (EPA/DOJ 7/16/2003)
• Windfall Lien Guidance: Frequently Asked Questions (OSRE 4/1/2008)
• Windfall Lien Administrative Procedures (OSRE 1/8/2008)

and (6)
http://epa.gov/brownfields/assessment_grants.htm
• Revolving Loan Fund Pilot/Grants at http://epa.gov/brownfields/rlflst.htm
• Cleanup Grants at http://epa.gov/brownfields/cleanup_grants.htm
• Area-Wide Planning Pilot Program at
http://www.epa.gov/brownfields/areawide_grants.htm
• Brownfield Grant Guidelines Frequently Asked Questions at
http://www.epa.gov/brownfields/proposal_guides/faqpguid.htm
Institutional §§ 101(40)(F), • Institutional Controls: A Citizen's Guide to Understanding Institutional Controls 107(q)(A)(V), Controls at Superfund, Brownfields, Federal Facilities, Underground 101(35)(A) Storage Tank, and Resource Conservation and Recovery Act Cleanups (EPA/OSWER 2/2005)
• Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing Institutional Controls at Superfund, Brownfields, Federal Facility, UST and RCRA Corrective Action Cleanups (EPA Draft 2/2003)
• Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (EPA/OSWER 9/2000)
State §§ 101(41), • To see state-specific voluntary cleanup programs Memoranda of Voluntary 128 Agreement, please see Cleanups and http://www.epa.gov/brownfields/state_tribal/moa_mou.htm Memoranda of Agreement

Contact Information
If you have any questions about this fact sheet, please contact Cecilia De Robertis of EPA’s
Office of Site Remediation Enforcement at 202-564-5132 or derobertis.cecilia@epa.gov.
Disclaimer: This document is provided solely as general information to highlight certain aspects of a more comprehensive program. It does not provide legal advice, have any legally binding effect, or expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits for any person. This document is not intended as a substitute for reading the statute or the guidance documents described in this document. It is the
local government’s sole responsibility to ensure that it obtains and retains liability protections.
EPA does not offer any guarantees or warranties for or related to acquisition of a contaminated
property or formerly contaminated property. It is also the local government’s sole responsibility
to maintain liability protection status as a contiguous property owner, bona fide prospective purchaser, or innocent land owner.

New Energy Department office seeks ideas for energy solutions on tribal lands

It's been a humble beginning for the Energy Department's new Office of Indian Energy Policy and Programs.

The creation of the office was announced in mid-December at President Obama's second tribal nation's gathering in Washington, D.C.

"We know that tribal lands hold a great capacity for solar, wind and geothermal projects, and we are committed to helping you unlock that potential," said Interior Secretary Ken Salazar at the gathering.

The office "will leverage the department's resources to promote tribal energy development," he said.

Its one Internet page [http://www.energy.gov/indianenergy/] can be found at www.energy.gov/indianenergy. Last week, you couldn't get there from the Energy Department's main page, but that will change soon, a spokeswoman said.

In 2007, the Bush Administration issued a statement [http://www.energy.gov/news/archives/5493.htm] saying it established the Office of Indian Energy Policy and Programs, leading to questions about what happened during that first effort.

Given such a past, it's easy to wonder about the office's future. Is the Obama Administration committed to it? How long it will be around? What will it accomplish?

On Friday, The Arctic Sounder interviewed the new director, Tracey LeBeau, an enrolled member of the Cheyenne River Sioux tribe from South Dakota.

Starting March 16 in Reno, Nev., the office will host a nationwide series of meetings to understand energy needs in Indian Country. The information gathered at those nine meetings will help create marching orders for the new effort.

The meeting in Alaska - home to outrageous rural energy prices and more than one-third of the nation's tribes - will be held last, on April 14. It will be an all-day meeting, rather than the half-day meetings planned in the Lower 48.

Question: The Office of Indian Energy was ... launched at the tribal nation's gathering Obama held a few months ago. But (it was apparently launched in 2007 too, with Steve Morello named as director). So are there two such offices? Or did this one in 2007 go defunct? How can we have a new office now and a new office then with the same name?

I knew Steve Morello, and vaguely how it was going back then. It's my understanding he was brought in and he was placed under Congressional and Intergovernmental Affairs. There was no office formally created to house either this office or him as an employee. So up until January of this year, I guess you could say the Office of Indian Energy Policy and Programs was around, but it wasn't stood up as a formal office. And it had no budget or programmatic, administrative support until this was formally created last month.

I should clarify, it had appropriations when the Obama Administration came in. The office was appropriated for 2009 and 2010, so there was the beginning of some support in that regard. But the office was not formally stood up until last month.

I understand that President Obama has provided a much different feel toward Indian tribes than we've gotten perhaps from any other president ever, in terms of his support for Indian tribes. But I have to ask, in light of this office appearing and disappearing in 2007, is this the real deal, or are you going to disappear in a couple months?

I would say the department has put forward budget requests for this office consistently, since Secretary Chu has been on.

So far in 2012, this office was separately identified and a budget request was made, so to the degree Congress continues to support those budget requests, like any other office, we'll continue to be here.

And I'm in the process of trying to put together a staffing plan not just for this year, but a longer-term staffing plan for the Office of Indian Energy. I do have a deputy director that has come on recently and we're starting to put together a staffing plan for the longer term.

We are in the process of thinking through our staffing plan. I'm only a little hesitant about saying how many people we'll have in our office because I'm so new into this, and this is a brand new office. So before we start announcing the building-out of programs and that sort of thing, which will drive some of our decisions about how to staff, we need to get out into Indian Country and talk to Indian Country and get a solid consensus with Indian Country.

If we go out in Indian Country and it's very clear to us that we hear loud and clear, we want a specific and large initiative, say, on electricity transmission, or electrification, that will drive a very different staffing scenario, than if they say let's just focus on a residential solar initiative.

The annual requested budget has been $1.5 million. ... We are trying to narrow it down to exactly how much appropriated funds we do have available to this office and to Indian Country.

It was created in the Energy Policy Act of 2005. The language is fairly broad, but it was created to encourage and coordinate and manage programs for tribes related to energy development and energy capacity building and reduce energy costs in Indian Country and to look at electrification of Indian lands and homes.

And so it's pretty broad. I think that was the right approach and right way to do it, because there's so much need out there. But our shorter-term strategy is to get out and talk to tribes directly and help us narrow it down, because we don't want to establish an office that is spread out too thin. We'd rather make sure we're hitting Indian Country's needs and priorities and focus in on them in the short-term.

I've been in the energy development arena my entire career. I've never worked for the federal government before. But on occasion I was fortunate enough to work on some tribal energy projects, so I have that perspective of where I think there are things that government can do better to facilitate energy development in Indian Country.

So one thing I could say - I guess it's a personal goal and it's definitely one of the issues we have heard just in our short time being here, directly from tribal leaders - has been a high degree of interest and I think opportunity for the Department of Energy to take a lead role in working across the different federal agencies that are also involved in some sort of role in energy development in Indian Country.

There's a lot of focus with the Administration in clean energy development, and there's a lot of agencies doing things in this sphere, and some of the feedback we're getting from tribes pretty consistently has been, 'Wow, there's so many people doing things in this area. It'll be helpful to understand how these programs can work together, and how we can leverage programs and resources to get projects that the tribes are wanting to see happen.'

So one of the first things we started doing is meeting and starting to discuss ways to collaborate and work more closely with agencies. For example, the U.S. Department of Agriculture has got a lot of programs and interests and Secretary Vilsack has been pretty outspoken about wanting to see clean energy programs in Indian Country and so much of Indian Country is in rural America, so that definitely falls in his wheelhouse. So working with USDA, Environmental Protection Agency, with the Department of Interior, which we're talking actively with right now to identify areas and programs where we can collaborate.

In (rural) Alaska, we've got really high energy costs. I don't know if it will get even worse with the higher price of oil that's been recently spiking. Do you have any ideas yet how Alaska can not only tap into this program, but reduce its energy costs?

We are very, very interested. We are going to be there April 14, including me. Everywhere else we're going to be doing half-day roundtable discussions, but in Anchorage we want to do a whole day, because we know the need is so serious and so great. And we know folks will be coming from a long ways, so we're going to do a whole day. We haven't found the venue yet, but we'll update the Web site as we find the venue.

We want to hear from people directly. We realize it's a special, very unique place, and it's an area where we want to pay some special attention to in terms of perhaps new approaches on a small, community scale or innovative technology level.

I'm not certain what you mean by new approaches on community scale or smaller scale development. Can you tell me more about that?

In general, a lot of the federal agencies have paid a lot of attention and focused funds on the big, commercial scale projects in Indian Country. And that makes sense, because a lot of tribes in the Lower 48 are looking at some really large build-out projects. That can work in Alaska in some cases, but there are also some more practical, driving needs in Alaska, just basic residential energy cost issues. So residential applications, community-scale applications, like distributed-energy projects. That's something we'll pay special attention to, and try to work with the communities up there to see how we can get some of these projects up and running.

There's a couple ways. We will be having a link on that Web page, identifying numbers and emails and that sort of thing. But we also have a dedicated email address set up. It's listed on the letter, tribalconsultation@hq.doe.gov. So any comments they have about the conference or the upcoming summit, that's where we're asking them asking them to send those questions or comments to.

EPA's ‘Analysis' of Clean Air Act Casts Doubt on Regulatory Review

In President Obama's Executive Order, “ Improving Regulation and Regulatory Review ,” he instructed executive branch agencies to begin retrospective analyses of their existing regulations. The goal is to determine whether rules “may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”

For that process to have any value, agencies must undertake it in good faith and engage in serious self-scrutiny. Unfortunately, bureaucracies are usually more interested in justifying their existence and activities, and the regulatory review is likely to be misused for that purpose.

WASHINGTON – A report released today by the U.S. Environmental Protection Agency (EPA) estimates that the benefits of reducing fine particle and ground level ozone pollution under the 1990 Clean Air Act amendments will reach approximately $2 trillion in 2020 while saving 230,000 people from early death in that year alone. The report studied the effects of the Clean Air Act updates on the economy, public health and the environment between 1990 and 2020.

Diane Katz at the Heritage Foundation delves into the flawed assumptions, methodological gimmicks, and general spinning in a Webmemo, “ Coming Clean on Regulatory Costs and Benefits “:

The report is astonishing for a variety of reasons—not the least of which is the enormous discrepancy between the Obama Administration's numbers and those of a similar previous study by the Clinton Administration EPA, which pegged the economic benefits of the act to be $170 billion (or 91 percent less than the Obama EPA's estimates). This magnitude of difference is explained by the unreliable assumptions underlying the Obama EPA's wildly inflated claims.

Nevertheless, newspaper headlines across the country—and throughout the blogosphere—trumpeted the new cost–benefit calculation as proving regulation to be unquestionably beneficial. The media's lack of scrutiny is particularly troublesome because, in this instance, the EPA is evaluating itself. Indeed, for every step beyond the agency's press release, the questionable methodology and leaps of logic are painfully obvious.

As Katz summarizes: “The benefit estimates in the report range from $250 million to $5.7 trillion—a vast difference that indicates vast uncertainty about the EPA's claims.” This from an Administration that has pledged itself to “sound science.”

Today's Washington Examiner reports that Chairman Fred Upton (R-MI) and leaders of the House Energy and Commerce Committee are holding the EPA to account, working to stop the agency from exceeding its authority and misusing the Clean Air Act to establish a national regime of greenhouse gas regulation. The committee's Energy and Power Subcommittee holds two hearings this week that offer an opportunity to examine the EPA's activities, including ginned-up analyses: Tuesday on Climate Science and EPA's Greenhouse Gas Regulations , and Friday on the EPA's budget .

EPA's Draft CWA Jurisdiction Guidance Is Leaked At Last

The suspense is over. Inside EPA just released EPA's December 2010 Draft Guidance describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S. Supreme Court's decisions in Rapanos and SWANCC. The Agency has yet to formally release the 2010 Draft Guidance.

As anticipated, the 2010 Draft Guidance significantly expands the scope of waters over which EPA and the Corps assert jurisdiction. Indeed, the Draft Guidance unabashedly exclaims that, “the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.” The Draft Guidance takes a dig at the 2008 Rapanos guidance stating that the older guidance “reflected a policy choice to interpret Justice Kennedy's opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a more faithful interpretation .”

The Draft Guidance rarely misses an opportunity to expand the scope of CWA jurisdiction as interpreted by the 2008 Rapanos guidance. For example, while the 2008 Rapanos guidance focused only on the CWA 404 regulations at issue in the Rapanos case, the 2010 Draft Guidance applies to decisions concerning “whether a waterbody is subject to any of the programs authorized under the CWA”, and expressly includes CWA sections 402 (NPDES), 311 (oil spill), 303 (water quality standards and TMDLs) and 401 (state water quality certification) programs.

The 2010 Draft Guidance begins with a broad interpretation of the meaning of “traditional navigable waters” and “interstate waters” for purposes of CWA jurisdiction. It says that waters will be considered “traditional navigable waters” if “they are susceptible for being used in the future for commercial navigation, including waterborne recreation . . . . A determination that a water is susceptible to future commercial navigation, including commercial waterborne recreation, should be supported by evidence .” Of course it should! In contrast, the 2008 Raponos guidance mandated that a likelihood of future commercial navigation, including waterborne commercial recreation, “must be clearly documented” and “will not be supported when evidence is insubstantial or speculative.”

The 2008 Rapanos guidance provided useful guidelines for the regulated community to determine what features would not be subject to CWA jurisdiction. For example, the “Summary of Key Points” in the 2008 Rapanos guidance provided that the agencies generally would not assert CWA jurisdiction over “swales or erosional features ( e .g ., gullies, small washes characterized by low volume, infrequent, or short duration flow)”, or over “ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.”

This reasonable interpretation of features that are outside the scope of CWA jurisdiction under Rapanos is eliminated from the “Summary of Key Points” in the 2010 Draft Guidance. Later text in the 2010 Draft Guidance does retain the concept that such features generally are not subject to CWA jurisdiction: “Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) are generally not waters of the United States because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters or interstate waters.” The Guidance emphasizes that “[e]rosional features such as gullies and rills are not part of the tributary system, are not jurisdictional waters, and shall not be assessed as part of the significant nexus determination. Natural and man-made swales are also not tributaries for purposes of this guidance.”

However, the 2010 Draft Guidance “clarifies” that under certain circumstances ditches may be jurisdictional. If a ditch has a bed and bank and an ordinary high water mark, and connects directly or indirectly to a traditional navigable water, it is considered a “tributary” potentially subject to CWA jurisdiction like any other tributary, if: a) it is a natural stream that has been altered (e.g., channelized, straightened or relocated); b) it is excavated in waters of the U.S., including wetlands; c) it has relatively permanent flowing or standing water; or d) the ditch connects two or more jurisdictional waters of the U.S. If a ditch or swale includes areas that meet the regulatory definition of “wetlands”, the ditch or swale must be evaluated to see if it qualifies as wetlands for purposes of CWA coverage.

The 2008 Rapanos guidance stated that the agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries “typically flow year round or have continuous flow at least seasonally ( e.g ., typically three months).” The 2010 Draft Guidance deletes the “continuous flow” and “three month” clarifications, and instead asserts that non-navigable tributaries are subject to CWA jurisdiction if “they are relatively permanent, meaning at least seasonal.” The 2010 Draft Guidance explains these changes were made because the “time period constituting ‘seasonal' will vary across the country. Rather than having distinct, rigid boundaries, stream reaches classified as perennial, intermittent, and ephemeral may more accurately be described as dynamic zones within stream networks.”

Under the 2010 Draft Guidance, more tributaries would be jurisdictional. The Draft Guidance takes the position that “a tributary continues as far as a channel (i.e., bed and bank) is present. A natural or man-made break (e.g., outcrop, underground flow, dam, weir, diversion or similar break) in the presence of a bed and bank or ordinary high water mark [OHWM] does not establish the limit of a tributary in cases where a bed and bank and an OHWM can be identified upstream and downstream of the break.” This position is likely to substantially increase the number of jurisdictional tributaries, especially in the desert southwest, where many washes have miles upon miles where no beds and banks with identifiable OHWMs exist as a result of underground flows, outcrops, and man-made breaks.

The 2010 Draft Guidance indicates that tributaries with an OHWM and identifiable beds and banks will generally be considered jurisdictional if they are “part of a tributary system to a traditional navigable water or interstate water, and therefore can transport pollutants, sediments, flood waters and other materials to a traditional navigable water.” In contrast, the 2008 guidance provided that these were simply factors to evaluate in determining whether a significant nexus exists.

The 2010 Draft Guidance interprets the word “significant” in “significant nexus” to mean “more than speculative or insubstantial.” The Guidance suggests that Justice Kennedy likely meant that “‘significant' includes having a predictable or observable chemical, physical or biological functional relationship.” It is debatable whether Justice Kennedy intended the word ‘significant' to have this more expansive meaning.

At this time, the fate of the 2010 Draft Guidance remains uncertain. The Guidance faces strong opposition from various industry groups and Congressional efforts to block its issuance. And it remains to be seen whether and the extent to which the Draft Guidance, if and when formally issued by EPA, will differ from the controversial December 2010 Draft.

Utah to Washington: This land is my land!

Resolution suggests D.C. cede 35,000 square miles of state

The BigThink website documents that the federal government controls more of Utah – on a percentage basis – than 47 other states, putting its brand on some 35,000 square miles of land there.

Now in what could be described as a Sagebrush Rebellion on steroids, a resolution advancing quickly in the state Legislature asks the feds to relinquish their control over that land.

"Be it resolved, that the Legislature of the state of Utah calls on the United States, through their agent, Congress, to relinquish to the state of Utah all right, title, and jurisdiction in those lands that were committed to the purposes of this state by terms of its Enabling act compact with them and that now reside within the state as public lands managed by the Bureau of Land Management that were reserved by Congress after the date of Utah statehood," says the State Jurisdiction of Federally Managed Lands Joint Resolution.

Its chief sponsor is Rep. Roger Barrus, and it already has been approved in the House and advanced to the Senate.

It continues, "Be it further resolved, that a copy of this resolution be sent to the Secretary of the United States Department of Interior, to the United States Director of the Federal Bureau of Land Management, to the Majority Leader of the United States Senate, to the Speaker of the United States House of Representatives, and to the members of Utah's Congressional Delegation."

While a resolution does not have the force of law, it was through resolutions that many of the articles through which states are in rebellion against their federal government today got started.

Those issues include firearms freedom acts, rejection of REAL ID, rejection of federal marijuana laws and a refusal to apply interstate commerce limits to intrastate commerce.

It is in the West where most of the federal government's 650 million acres of land is located. Some 22 million is in Utah.

According to BigThink, the lands are used as military bases, parks, reservations and are leased for forestry and mining operations. In Nevada, the federal government controls 84 percent of the land, in Alaska, 69 percent, and in Utah 57 percent. Other states are Oregon, 53 percent; Idaho, 50 percent; Arizona, 48 percent; California , 45 percent; Wyoming, 42 percent, New Mexico, 41 percent and Colorado, 36 percent.

Agencies with say-so over the acreage include the BLM, Forest Service, Fish and Wildlife Service, National Park Service, Bureau of Indian Affairs, Department of Defense, Corps of Engineers and Bureau of Reclamation.

The resolution cites the Constitutional Convention's aims that "state governments would clearly retain all the rights of sovereignty and independence which they before had and which were not exclusively delegated to the United States Congress."

It explains that "the federal trust respecting public lands obligates the United States, through their agent, Congress, to extinguish both their governmental jurisdiction and their title on the public lands that are held in trust by the United States for the states in which they are located."

If that is not done, the resolution said, "the state is denied the same complete and independent sovereignty and jurisdiction that was expressly retained by the original states, and its citizens are denied the political right to establish or administer their own republican self-governance as is their right under the Equal Footing Clause."

The resolution explains that use of the more than 22 million acres at issue "has been eroded by an oppressive and over-reaching federal management agenda that has adversely impacted the sovereignty and the economies of the state of Utah and local governments."

Now, suddenly, it explains, the Department of Interior has "arbitrarily created a new category of lands, denominated 'Wild Lands,' and has superimposed these mandatory protective management provisions upon BLM operations and planning decisions in violation of the provisions of the Federal Land Policy and Management Act, the provisions of the Administrative Procedures Act, and Presidential Executive Order 13563 concerning openness in policymaking."

The result is Utah officials feel the state is better off running land inside its borders itself than having bureaucrats in Washington making those decisions.

The Sagebrush Rebellion developed on a small scale during the 1970s when federal bureaucrats imposed a large number of new rules and regulations on lands throughout the West, interrupting business and other uses of the lands that had been going on for years.

Generally, the state proposals would establish a commission for the review of "all federal laws and regulations for constitutionality." State officials then would decide whether they qualify and could be in effect in the state.

The plan has been promoted by The Patriots Union, a Wyoming-based organization that is taking on the battle against what it considers an overreaching federal government.

WND also has reported that a large number of states are battling Washington over specific issues state lawmakers and governments believe they should decide.

Attorney Stephen Pidgeon, a spokesman for the Patriots Union, said states are starting to assert their rights under the Constitution.

He said the idea is as old as the administration of Jimmy Carter. At that time it was called the "Sagebrush Rebellion," when Western states fought back against Washington's control of land inside their borders, especially oil-rich and coal-filled land resources.

"There is no constitutional right for the federal government to hold natural resources, federal parks," he said. "For states such as Utah, which has been fighting with the federal government to regain ownership of its own lands, [this nullification plan] offers a strong argument to chase the government off its property."

The issue is being forced into the headlines by President Obama's law that effectively nationalizes the decision-making process for health care.

But states also have raised the issues of currency, the REAL ID Act, marijuana laws, guns, health care regulation and others.

"Under the Constitution states are required to use coinage of gold and silver," Pidgeon said. "But the federal government has inflicted on the states the fraud of a debased fiat currency.

"This is the best mechanism that has been developed to date to put the beast back in the cage," he said.

Officials with the Patriots Union say dozens of states are working on the idea of a nullification plan.

Priest Lake couple takes EPA challenge to high court

SANDPOINT — A determined Bonner County couple who contends the U.S. Environmental Protection Agency is unfairly interfering with their right to develop a homesite at Priest Lake is taking their fight to the nation's high court.

Counsel for Mike and Chantelle Sackett petitioned the U.S. Supreme Court last week to consider a series of lower court rulings concerning an EPA determination that federally regulated wetlands are present on their half-acre parcel in a Priest Lake subdivision.

The Sacketts sued EPA over the wetlands determination in U.S. District Court, but a federal judge dismissed the action in 2008 and entered a judgment in favor of EPA. The couple sought redress through the U.S. 9th Circuit Court of Appeals last year, but a three-judge panel ruled judicial review is not available.

A petition for the entire bench of the 9th Circuit to hear the request was also declined.

The Sacketts petitioned the high court to take their case and rule that they have the right to challenge EPA's wetlands determination.

“The issue in this case is simple, but critically important to all property owners and everyone who values fair play and due process,” said Damien Schiff of the Pacific Legal Foundation, which is representing the Sacketts pro bono. “When bureaucrats try to impose their will on private property, shouldn't the owners be permitted their day in court to challenge the government's claim of control?”

The PLF, which bills itself as a watchdog group that litigates for property rights and a balanced approach to environmental regulations, is petitioning the higher court to a review lower court's judgment for reversible error.

The group contends the 9th Circuit ruling foists an intolerable choice on landowners — spend hundreds of thousands of dollars applying for a permit of questionable need or risk an equally costly enforcement action with fines and penalties.

The PLF also argues the 9th Circuit's ruling conflicts with an 11th Circuit ruling regarding review procedures for federal compliance orders.

The Sacketts have insisted on a hearing to test EPA's jurisdiction of their property.

McConnell: EPA overstepping its bounds and must be stopped

Improving Regulation and Regulatory Review - Executive Order

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:

Section 1 . General Principles of Regulation . (a) Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

(b) This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

(c) In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

Sec. 2 . Public Participation . (a) Regulations shall be adopted through a process that involves public participation. To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.

(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.

(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.

Sec. 3 . Integration and Innovation . Some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization. Each agency shall also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.

Sec. 4 . Flexible Approaches . Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

Sec. 5 . Science . Consistent with the President's Memorandum for the Heads of Executive Departments and Agencies,

"Scientific Integrity" (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.

Sec. 6 . Retrospective Analyses of Existing Rules . (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.

(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

Sec. 7 . General Provisions . (a) For purposes of this order, "agency" shall have the meaning set forth in section 3(b) of Executive Order 12866.

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Executive Order--White House Council for Community Solutions

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to encourage the growth and maximize the impact of innovative community solutions and civic participation by all Americans, it is hereby ordered as follows:

Section 1 . Establishment . There is established the White House Council for Community Solutions (Council) within the Corporation for National and Community Service (CNCS) to support the social innovation and civic participation agenda of the Domestic Policy Council.

Sec . 2 . Mission and Functions of the Council . The Council shall support the nationwide "Call To Service" campaign authorized in the Serve America Act (Public Law 111 13) by:

(a) identifying the key attributes of effective community developed solutions to our national problems;

(b) identifying specific policy areas in which the Federal Government is investing significant resources that lend themselves to cross-sector collaboration and providing recommendations for such collaborations;

(c) highlighting examples of best practices, tools, and models that are making a demonstrable positive impact in communities and fostering increased cross-sector collaboration and civic participation;

(d) making recommendations to the President on how to engage individuals, State and local governments, institutions of higher education, non profit and philanthropic organizations, community groups, and businesses to support innovative community-developed solutions that have a significant impact in solving our Nation's most serious problems; and

(e) honoring and highlighting the work of leaders in service and social innovation who are making a significant impact in their communities.

Sec. 3 . Membership . (a) The Council shall be composed of not more than 30 members from outside the Federal Government appointed by the President. The Chair of the Board of Directors of the CNCS shall also serve on the Council. Appointed members of the Council may include individuals with relevant experience or subject matter expertise that the President deems appropriate, as well as individuals who may serve as representatives of a variety of sectors, including, among others, State and local governments, institutions of higher education, non profit and philanthropic organizations, community groups, and businesses.

(b) The President shall designate one of the members of the Council to serve as Chair. The Chair shall convene and preside at meetings of the Council.

(c) The term of office of members appointed by the President shall be 2 years, and members shall be eligible for reappointment. Members may continue to serve after the expiration of their terms until the President appoints a successor. A member appointed to fill a vacancy shall serve only for the unexpired term of such vacancy.

Sec. 4. Administration. (a) The CNCS shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations.

(b) The heads of executive departments and agencies shall assist and provide information to the Council, consistent with applicable law and subject to the availability of appropriations, as may be necessary to carry out the functions of the Council.

(c) The members of the Council shall serve without compensation for their work on the Council. Members of the Council may, however, receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701 5707).

(d) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the "Act"), may apply to the administration of the Council, any functions of the President under the Act, except that of reporting to the Congress, shall be performed by the Chief Executive Officer of the CNCS in accordance with the guidelines issued by the Administrator of General Services.

Sec. 5. Termination. The Council shall terminate 2 years from the date of this order, unless renewed by the President.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Executive Order -- Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based and other neighborhood organizations, to promote compliance with constitutional and other applicable legal principles, and to strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need, it is hereby ordered:

Section 1. Amendments to Executive Order 13279 . Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), as amended, is hereby further amended:

(a) in section 1, by striking subsection (e), and inserting in lieu thereof the following: "(e) 'Specified agency heads' means:

(xii) the Administrator of the United States Agency for International Development; and

(xiii) the Chief Executive Officer of the Corporation for National and Community Service."

" Sec. 2. Fundamental Principles . In formulating and implementing policies that have implications for faith-based and other neighborhood organizations, agencies that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:
(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible.
(b) The Nation's social service capacity will benefit if all eligible organizations, including faith-based and other neighborhood organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs.
(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.

(d) All organizations that receive Federal financial assistance under social service programs should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.

(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, as well as other applicable law, and must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f) Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.

(g) Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question, or religious character. Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.

(h) Each agency responsible for administering or awarding Federal financial assistance for social service programs shall offer protections for beneficiaries of such programs pursuant to the following principles:

(i) Referral to an Alternative Provider. If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider.

(ii) Agency Responsibilities. Each agency responsible for administering a social service program or supporting a social service program with Federal financial assistance shall establish policies and procedures designed to ensure that (1) appropriate and timely referrals are made to an alternative provider; (2) all referrals are made in a manner consistent with all applicable privacy laws and regulations; (3) the organization subject to subsection (h)(i) notifies the agency of any referral; (4) such organization has established a process for determining whether the beneficiary has contacted the alternative provider; and (5) each beneficiary of a social service program receives written notice of the protections set forth in this subsection prior to enrolling in or receiving services from such program.

(i) To promote transparency and accountability, agencies that provide Federal financial assistance for social service programs shall post online, in an easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies shall also post online a list of entities that receive Federal financial assistance for provision of social service programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.

(j) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.";

(c) by striking section 3, and inserting in lieu thereof the following:

" Sec. 3. Ensuring Uniform Implementation Across the Federal Government.

In order to promote uniformity in agencies' policies that have implications for faith-based and other neighborhood organizations and in related guidance, and to ensure that those policies and guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based and Other Neighborhood Partnerships (Working Group).

(a) Mission and Function of the Working Group . The Working Group shall meet periodically to review and evaluate existing agency regulations, guidance documents, and policies that have implications for faith-based and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent permitted by law, amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles set forth in section 2 of this order.

(b) Uniform Agency Implementation . Within 120 days of the date of this order, the Working Group shall submit a report to the President on amendments, changes, or additions that are necessary to ensure that regulations and guidance documents associated with the distribution of Federal financial assistance for social service programs are consistent with the fundamental principles set forth in section 2 of this order. The Working Group's report should include, but not be limited to, a model set of regulations and guidance documents for agencies to adopt in the following areas:

(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for religious identity; (iii) the distinction between "direct" and "indirect" Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v) transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi) obligations of nongovernmental and governmental intermediaries; (vii) instructions for peer reviewers and those who recruit peer reviewers; and (viii) training on these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing this report and in reviewing agency regulations and guidance for consistency with section 2 of this order, the Working Group shall consult the March 2010 report and recommendations prepared by the President's Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the Office of Faith-Based and Neighborhood Partnerships.

(c) Guidance . The Director of the Office of Management and Budget (OMB), following receipt of a copy of the report of the Working Group, and in coordination with the Department of Justice, shall issue guidance to agencies on the implementation of this order, including in particular subsections 2(h)-(j).

(d) Membership of the Working Group . The Director of the Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by the Director of the OMB shall serve as the Co-Chairs of the Working Group. The Co Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs, the Working Group shall consist of a senior official with knowledge of policies that have implications for faith-based and other neighborhood organizations from the following agencies and offices:

(i)   the Department of State;
(ii)   the Department of Justice;
(iii)   the Department of the Interior;
(iv)   the Department of Agriculture;
(v)   the Department of Commerce;
(vi)   the Department of Labor;
(vii)   the Department of Health and Human Services;
(viii)   the Department of Housing and Urban Development;
(ix)   the Department of Education;
(x)   the Department of Veterans Affairs;
(xi)   the Department of Homeland Security;
(xii)   the Environmental Protection Agency;
(xiii)   the Small Business Administration;
(xiv)   the United States Agency for International Development;
(xv)   the Corporation for National and Community Service; and
(xvi)   other agencies and offices as the President, from time to time, may designate.

(e) Administration of the Initiative . The Department of Health and Human Services shall provide funding and administrative support for the Working Group to the extent permitted by law and within existing appropriations."; and

(d) by striking in the title, preamble, and section 1(c), "community" and inserting in lieu thereof "other neighborhood".
Sec. 2. General Provisions.
(a) This order amends the requirements contained in Executive Order 13279. This order supplements, but does not supersede, the requirements contained in Executive Orders 13198 and 13199 of January 29, 2001, and Executive Order 13498 of February 5, 2009.
(b) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Executive Order--Classified National Security Information Programs for State, Local, Tribal, and Private Sector Entities

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to ensure the proper safeguarding of information shared with State, local, tribal, and private sector entities, it is hereby ordered as follows:

Sec. 1.1. There is established a Classified National Security Information Program (Program) designed to safeguard and govern access to classified national security information shared by the Federal Government with State, local, tribal, and private sector (SLTPS) entities.

Sec. 1.2. The purpose of this order is to ensure that security standards governing access to and safeguarding of classified material are applied in accordance with Executive Order 13526 of December 29, 2009 ("Classified National Security Information"), Executive Order 12968 of August 2, 1995, as amended ("Access to Classified Information"), Executive Order 13467 of June 30, 2008 ("Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information"), and Executive Order 12829 of January 6, 1993, as amended ("National Industrial Security Program"). Procedures for uniform implementation of these standards by SLTPS entities shall be set forth in an implementing directive to be issued by the Secretary of Homeland Security within 180 days of the date of this order, in consultation with affected executive departments and agencies (agencies), and with the concurrence of the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the Director of the Information Security Oversight Office.

Sec. 1.3. Additional policy provisions for access to and safeguarding of classified information shared with SLTPS personnel include the following:

(a) Eligibility for access to classified information by SLTPS personnel shall be determined by a sponsoring agency. The level of access granted shall not exceed the Secret level, unless the sponsoring agency determines on a case by case basis that the applicant has a demonstrated and foreseeable need for access to Top Secret, Special Access Program, or Sensitive Compartmented Information.

(b) Upon the execution of a non disclosure agreement prescribed by the Information Security Oversight Office or the Director of National Intelligence, and absent disqualifying conduct as determined by the clearance granting official, a duly elected or appointed Governor of a State or territory, or an official who has succeeded to that office under applicable law, may be granted access to classified information without a background investigation in accordance with the implementing directive for this order. This authorization of access may not be further delegated by the Governor to any other person.

(c) All clearances granted to SLTPS personnel, as well as accreditations granted to SLTPS facilities without a waiver, shall be accepted reciprocally by all agencies and SLTPS entities.

(d) Physical custody of classified information by State, local, and tribal (SLT) entities shall be limited to Secret information unless the location housing the information is under the full time management, control, and operation of the Department of Homeland Security or another agency. A standard security agreement, established by the Department of Homeland Security in consultation with the SLTPS Advisory Committee, shall be executed between the head of the SLT entity and the U.S. Government for those locations where the SLT entity will maintain physical custody of classified information.

(e) State, local, and tribal facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with established standards, in accordance with Executive Order 13526 and the implementing directive for this order, by the Department of Homeland Security or another agency that has entered into an agreement with the Department of Homeland Security to perform such inspection, accreditation, and monitoring.

(f) Private sector facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with standards established pursuant to Executive Order 12829, as amended, by the Department of Defense or the cognizant security agency under Executive Order 12829, as amended.

(g) Access to information systems that store, process, or transmit classified information shall be enforced by the rules established by the agency that controls the system and consistent with approved dissemination and handling markings applied by originators, separate from and in addition to criteria for determining eligibility for access to classified information. Access to information within restricted portals shall be based on criteria applied by the agency that controls the portal and consistent with approved dissemination and handling markings applied by originators.

(h) The National Industrial Security Program established in Executive Order 12829, as amended, shall govern the access to and safeguarding of classified information that is released to contractors, licensees, and grantees of SLT entities.

(i) All access eligibility determinations and facility security accreditations granted prior to the date of this order that do not meet the standards set forth in this order or its implementing directive shall be reconciled with those standards within a reasonable period.

(j) Pursuant to section 4.1(i)(3) of Executive Order 13526, documents created prior to the effective date of Executive Order 13526 shall not be re disseminated to other entities without the consent of the originating agency. An agency head or senior agency official may waive this requirement for specific information that originated within that agency.

Sec. 2. Policy Direction. With policy guidance from the National Security Advisor and in consultation with the Director of the Information Security Oversight Office, the Director of the Office of Management and Budget, and the heads of affected agencies, the Secretary of Homeland Security shall serve as the Executive Agent for the Program. This order does not displace any authorities provided by law or Executive Order and the Executive Agent shall, to the extent practicable, make use of existing structures and authorities to preclude duplication and to ensure efficiency.

Sec. 3. SLTPS Policy Advisory Committee. (a) There is established an SLTPS Policy Advisory Committee (Committee) to discuss Program related policy issues in dispute in order to facilitate their resolution and to otherwise recommend changes to policies and procedures that are designed to remove undue impediments to the sharing of information under the Program. The Director of the Information Security Oversight Office shall serve as Chair of the Committee. An official designated by the Secretary of Homeland Security and a representative of SLTPS entities shall serve as Vice Chairs of the Committee. Members of the Committee shall include designees of the heads of the Departments of State, Defense, Justice, Transportation, and Energy, the Nuclear Regulatory Commission, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the Federal Bureau of Investigation. Members shall also include employees of other agencies and representatives of SLTPS entities, as nominated by any Committee member and approved by the Chair.

(b) Members of the Committee shall serve without compensation for their work on the Committee, except that any representatives of SLTPS entities may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707).

(d) Insofar as the Federal Advisory Committee Act, as amended (5 App. U.S.C.)(the "Act") may apply to this order, any functions of the President under that Act, except that of reporting to the Congress, which are applicable to the Committee, shall be performed by the Administrator of General Services in accordance with guidelines and procedures established by the General Services Administration.

Sec. 4. Operations and Oversight. (a) The Executive Agent for the Program shall perform the following responsibilities:

(2) accreditation, periodic inspection, and monitoring of all facilities owned or operated by SLT entities that have access to classified information, except when another agency has entered into an agreement with the Department of Homeland Security to perform some or all of these functions;

(3) processing of security clearance applications by SLTPS personnel, when requested by a sponsoring agency, on a reimbursable basis unless otherwise determined by the Department of Homeland Security and the sponsoring agency;

(4) documenting and tracking the final status of security clearances for all SLTPS personnel in consultation with the Office of Personnel Management, the Department of Defense, and the Office of the Director of National Intelligence;

(5) developing and maintaining a security profile of SLT facilities that have access to classified information; and

(6) developing training, in consultation with the Committee, for all SLTPS personnel who have been determined eligible for access to classified information, which shall cover the proper safeguarding of classified information and sanctions for unauthorized disclosure of classified information.

(b) The Secretary of Defense, or the cognizant security agency under Executive Order 12829, as amended, shall provide program management, oversight, inspection, accreditation, and monitoring of all private sector facilities that have access to classified information.

(c) The Director of National Intelligence may inspect and monitor SLTPS programs and facilities that involve access to information regarding intelligence sources, methods, and activities.

(d) Heads of agencies that sponsor SLTPS personnel and facilities for access to and storage of classified information under section 1.3(a) of this order shall:

(1) ensure on a periodic basis that there is a demonstrated, foreseeable need for such access; and

(2) provide the Secretary of Homeland Security with information, as requested by the Secretary, about SLTPS personnel sponsored for security clearances and SLT facilities approved for use of classified information prior to and after the date of this order, except when the disclosure of the association of a

specific individual with an intelligence or law enforcement agency must be protected in the interest of national security, as determined by the intelligence or law enforcement agency.

(a) "Access" means the ability or opportunity to gain knowledge of classified information.

(b) "Agency" means any "Executive agency" as defined in 5 U.S.C. 105; any military department as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into possession of classified information.

(c) "Classified National Security Information" or "classified information" means information that has been determined pursuant to Executive Order 13526, or any predecessor or successor order, to require protection against unauthorized disclosure, and is marked to indicate its classified status when in documentary form.

(d) "Information" means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.

(e) "Intelligence activities" means all activities that elements of the Intelligence Community are authorized to conduct pursuant to law or Executive Order 12333, as amended, or a successor order.

(f) "Local" entities refers to "(A) a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; and (B) a rural community, unincorporated town or village, or other public entity" as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(11)).

(g) "Private sector" means persons outside government who are critically involved in ensuring that public and private preparedness and response efforts are integrated as part of the Nation's Critical Infrastructure or Key Resources (CIKR), including:

(1) corporate owners and operators determined by the Secretary of Homeland Security to be part of the CIKR;

(3) personnel serving in specific leadership positions of CIKR coordination, operations, and oversight;

(5) other persons not otherwise eligible for the granting of a personnel security clearance pursuant to Executive Order 12829, as amended, who are determined by the Secretary of Homeland Security to require a personnel security clearance.

(h) "Restricted portal" means a protected community of interest or similar area housed within an information system and to which access is controlled by a host agency different from the agency that controls the information system.

(i) "Sponsoring Agency" means an agency that recommends access to or possession of classified information by SLTPS personnel.

(j) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth

of the Northern Mariana Islands, and any possession of the United States, as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(15)).

(1) Governors, mayors, tribal leaders, and other elected or appointed officials of a State, local government, or tribe;

(3) public health, radiological health, and medical professionals of a State, local government, or tribe; and

(4) regional, State, local, and tribal emergency management agency personnel, including State Adjutants General and other appropriate public safety personnel and those personnel providing support to a Federal CIKR mission.

(l) "Tribe" means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe as defined in the Federally Recognized Tribe List Act of 1994 (25 U.S.C. 479a(2)).

(m) "United States" when used in a geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States and any waters within the territorial jurisdiction of the United States.

Sec. 6. General Provisions. (a) This order does not change the requirements of Executive Orders 13526, 12968, 13467, or 12829, as amended, and their successor orders and directives.

(b) Nothing in this order shall be construed to supersede or change the authorities of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.); the Secretary of Defense under Executive Order 12829, as amended; the Director of the Information Security Oversight Office under Executive Order 13526 and Executive Order 12829, as amended; the Attorney General under title 18, United States Code, and the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.); the Secretary of State under title 22, United States Code, and the Omnibus Diplomatic Security and Antiterrorism Act of 1986; or the Director of National Intelligence under the National Security Act of 1947, as amended, Executive Order 12333, as amended, Executive Order 12968, as amended, Executive Order 13467, and Executive Order 13526.

(c) Nothing in this order shall limit the authority of an agency head, or the agency head's designee, to authorize in an emergency and when necessary to respond to an imminent threat to life or in defense of the homeland, in accordance with section 4.2(b) of Executive Order 13526, the disclosure of classified information to an individual or individuals who are otherwise not eligible for access in accordance with the provisions of Executive Order 12968.

(d) Consistent with section 892(a)(4) of the Homeland Security Act of 2002 (6 U.S.C. 482(a)(4)), nothing in this order shall be interpreted as changing the requirements and authorities to protect sources and methods.

(e) Nothing in this order shall supersede measures established under the authority of law or Executive Order to protect the security and integrity of specific activities and associations that are in direct support of intelligence operations.

(f) Pursuant to section 892(e) of the Homeland Security Act of 2002 (6 U.S.C. 482(e)), all information provided to an SLTPS entity from an agency shall remain under the control of the Federal Government. Any State or local law authorizing or requiring disclosure shall not apply to such information.

(g) Nothing in this order limits the protection afforded any classified information by other provisions of law. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(h) Nothing in this order shall be construed to obligate action or otherwise affect functions by the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(i) This order shall be implemented subject to the availability of appropriations and consistent with procedures approved by the Attorney General pursuant to Executive Order 12333, as amended.

Sec. 7. Effective Date. This order is effective 180 days from the date of this order with the exception of section 3, which is effective immediately.

Executive Order -- President's Council of Advisors on Science and Technology

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish an advisory council on science,
technology, and innovation, it is hereby ordered as follows:

Section 1 . Establishment . The President's Council of Advisors on Science and Technology (PCAST) is hereby established. The PCAST shall be composed of not more than 21 members, one of whom shall be the Assistant to the President for Science and Technology (the "Science Advisor"), and 20 of whom shall include distinguished individuals and representatives from sectors outside of the Federal Government appointed by the President. These nonfederal members shall have diverse perspectives and expertise in science, technology, and innovation. The Science Advisor shall serve as a Co-Chair of the PCAST. The President shall also designate at least one, but not more than two, of the nonfederal members to serve as a Co-Chair of the PCAST with the Science Advisor.

Sec. 2 . Functions . (a) The PCAST shall advise the President, directly at its meetings with the President and also through the Science Advisor, on matters involving science, technology, and innovation policy. This advice shall include, but not be limited to, policy that affects science, technology, and innovation, as well as scientific and technical information that is needed to inform public policy relating to the economy, energy, environment, public health, national and homeland security, and other topics. The PCAST shall meet regularly and shall:

(i) respond to requests from the President or the Science Advisor for information, analysis, evaluation, or advice;

(ii) solicit information and ideas from the broad range of stakeholders, including but not limited to the research community, the private sector, universities, national laboratories, State and local governments, foundations, and nonprofit organizations;

(iii) serve as the advisory committee identified in subsections 101(b) and 103(b) of the High-Performance Computing Act of 1991 (Public Law 102-194), as amended (15 U.S.C. 5511(b) and 5513(b)). In performing the functions of such advisory committee, the PCAST shall be known as the President's Innovation and Technology Advisory Committee; and

(iv) serve as the advisory panel identified in section 4 of the 21st Century Nanotechnology Research and Development Act (15 U.S.C. 7503) (21st Century
Act). In performing the functions of such advisory committee, the PCAST shall be known as the National Nanotechnology Advisory Panel. Nothing in this
order shall be construed to require the National Nanotechnology Advisory Panel to comply with any requirement from which it is exempted by section 4(f)
of the 21st Century Act.

(b) The PCAST shall provide advice from the nonfederal sector to the National Science and Technology Council (NSTC) in response to requests from the NSTC.

Sec. 3 . Administration . (a) The heads of executive departments and agencies shall, to the extent permitted by law, provide the PCAST with information concerning scientific and technological matters when requested by the PCAST Co-Chairs and as required for the purpose of carrying out the PCAST's functions.

(b) In consultation with the Science Advisor, the PCAST is authorized to create standing subcommittees and ad hoc groups, including, but not limited to, technical advisory groups to assist the PCAST and provide preliminary information directly to the PCAST.

(c) So that the PCAST may provide advice and analysis regarding classified matters, the Science Advisor may request that members of the PCAST, its standing subcommittees, or ad hoc groups who do not hold a current clearance for access to classified information, receive security clearance and access determinations pursuant to Executive Order 12968 of August 2, 1995, as amended, or any successor order.

(d) The Office of Science and Technology Policy (OSTP) shall provide such funding and administrative and technical support as the PCAST may require.

(e) Members of the PCAST shall serve without any compensation for their work on the PCAST, but may receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the government service (5 U.S.C. 5701-5707).

Sec. 4 . Termination . The PCAST shall terminate 2 years from the date of this order unless extended by the President.

Sec. 5 . General Provisions . (a) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (FACA) may apply to the PCAST, any functions of the President under the FACA, except that of reporting to the Congress, shall be performed by the Director of the OSTP in accordance with the guidelines and procedures established by the Administrator of General Services.

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

Sec. 6 . Revocation . Executive Order 13226 of September 30, 2001, as amended, is hereby revoked.

Joint CFTC-SEC Advisory Committee Recommends Transformative Market Changes in the Wake of May 6th Flash Crash March 2, 2011

By Andre E. Owens , Cherie Weldon , Elena Schwieger

On February 18, 2011, the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (the "Committee") issued a report entitled Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010 ("Report"), setting forth its recommendations for regulatory action by the Securities and Exchange Commission ("SEC") and the Commodity Futures Trading Commission ("CFTC") (collectively, "the Commissions") in the wake of the so-called "flash crash" of May 6th. 1 The Committee recommends substantial changes to certain widespread market practices, as well as more incremental changes to certain of the Commissions' current market regulatory initiatives. Taken together, implementation of the Committee's recommendations would have a significant, transformative effect on the operation of the U.S. markets and their participants.

I. Recommendations for Significant Regulatory Changes

The Report makes various recommendations that, if adopted, would have substantial, far-reaching effects on the current operation of the U.S. markets:

II. Recommendations for Enhancements to Current Regulatory Initiatives

The Committee also supports certain existing regulatory initiatives by the SEC and the CFTC in the wake of May 6th, and recommends further enhancements or refinements to these initiatives:

1 Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010: Summary Report of the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (Feb. 18, 2011), available at www.sec.gov/spotlight/sec-cftcjointcommittee/021811-report.pdf . See also Preliminary Findings Regarding the Market Events of May 6, 2010: Report of the Staffs of the CFTC and SEC to the Joint Advisory Committee on Emerging Regulatory Issues (May 18, 2010), available at www.sec.gov/sec-cftc-prelimreport.pdf ; Findings Regarding the Market Events of May 6, 2010: Report of the Staffs of the CFTC and SEC to the Joint Advisory Committee on Emerging Regulatory Issues (Sept. 30, 2010), available at www.cftc.gov/ucm/groups/public/@otherif/documents/ifdocs/staff-findings050610.pdf .

2 The Committee states that the percentages of order flow executed in this manner has sharply risen and is believed to account for over 20% of the share volume in listed equity securities. Report at 11.

3 See Risk Management Controls for Brokers or Dealers with Market Access, Exchange Act Release No. 61379, 75 Fed. Reg. 4007 (Jan. 10, 2010); SEC Proposes Broad Changes for Broker-Dealers with Direct Access to ATSs and Exchanges, WilmerHale Client Alert (Feb. 3, 2010), available at www.wilmerhale.com/publications/whPubsDetail.aspxpublication=9392 . See also Risk Management Controls for Brokers or Dealers with Market Access, Exchange Act Release No. 63241, 75 Fed. Reg. 69792 (Nov. 15, 2010); A Return to Modesty - The SEC Clothes Naked Access: Adoption of Risk Management Controls for Broker-Dealers with Market Access, WilmerHale Client Alert (Nov. 11, 2010), available at www.wilmerhale.com/publications/whPubsDetail.aspx?publication=9646 .

4 See Antidisruptive Practices Authority Contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act, 75 Fed. Reg. 67301 (Nov. 2, 2010).

5 Consolidated Audit Trail, Exchange Act Release No. 62174, 75 Fed. Reg. 32556 (Jun. 8, 2010); SEC Proposes Consolidated Audit Trail, WilmerHale Client Alert (June 9, 2010), available at www.wilmerhale.com/files/upload/Securities_Alert_6_9_10.pdf .

“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

Congress, DOE's loan guarantee program, and America's Clean Energy Future

The Department of Energy's loan guarantee program leverages federal dollars by allowing the DOE to guarantee the debt of privately owned clean energy developers and manufacturing companies instead of investing directly into these companies through grants or tax subsidies.

Richard W. Caperton, in a CAP cross-post on what the House GOP's proposal to slash the program would mean for clean energy.

RECOMMENDATION 1.10: ADOPT IMMEDIATE REFORMS TO REDUCE SPENDING AND MAKE THE FEDERAL GOVERNMENT MORE EFFICIENT.

In addition to these proposals, the Commission advises that through executive action, congressional rule, and legislation, a number of steps be taken immediately to show Washington can lead by example. The collected recommendations that follow would reduce spending on both the security and non-security sides of the discretionary budget. Together, they will save more than $50 billion in 2015 alone:

1.10.6 Sell excess federal real property. The federal government is the largest real property owner in the country, with an inventory of more than 1.2 million buildings, structures, and land parcels. Holding this unneeded property carries maintenance costs and forgoes the opportunity to sell potentially valuable property. We propose directing the GSA to loosen agency restrictions associated with selling unused buildings and land. This proposal will save at least $100 million in 2015.

Protect the disadvantaged. About 20 percent of mandatory spending is devoted to income support programs for the most disadvantaged. These include programs such as unemployment compensation, food stamps, and Supplemental Security Income (SSI). These programs provide vital means of support for the disadvantaged, and this report does not recommend any fundamental policy changes to these programs.

End wasteful spending. The first place to look for savings must be wasteful spending, including subsidies that are poorly targeted or create perverse incentives, and improper payments that can be eliminated through program integrity efforts.

Look to the private sector. Some mandatory programs, like federal civilian and military retirement systems, are similar to programs in the private sector. When appropriate, we should apply innovations and cost-saving techniques from the private sector.

The Abandoned Mine Land program at the Department of the Interior operates a fund for the reclamation of abandoned coal mines across the United States . The program is financed by a fee paid by the coal industry. In 2006, Congress authorized payments from the Abandoned Mine Land fund to states and tribes certified as having completed the reclamation of their abandoned coal mines – though payments can be used for any purpose. The Commission recommends eliminating these payments because they no longer serve their stated purpose -- contributing to reclaiming abandoned coal mines. Instead, they are paid to states and tribes whose mines have already been reclaimed.

By the authority vested in me as President by the Constitution and the laws of the United States of America, and to establish an integrated strategy towards sustainability in the Federal Government and to make reduction of greenhouse gas emissions a priority for Federal agencies, it is hereby ordered as follows:

Section 1. Policy. In order to create a clean energy economy that will increase our Nation's prosperity, promote energy security, protect the interests of taxpayers, and safeguard the health of our environment, the Federal Government must lead by example. It is therefore the policy of the United States that Federal agencies shall increase energy efficiency; measure, report, and reduce their greenhouse gas emissions from direct and indirect activities; conserve and protect water resources through efficiency, reuse, and storm water management; eliminate waste, recycle, and prevent pollution; leverage agency acquisitions to foster markets for sustainable technologies and environmentally preferable materials, products, and services; design, construct, maintain, and operate high-performance sustainable buildings in sustainable locations; strengthen the vitality and livability of the communities in which Federal facilities are located; and inform Federal employees about and involve them in the achievement of these goals.

It is further the policy of the United States that to achieve these goals and support their respective missions, agencies shall prioritize actions based on a full accounting of both economic and social benefits and costs and shall drive continuous improvement by annually evaluating performance, extending or expanding projects that have net benefits, and reassessing or discontinuing under-performing projects.

Finally, it is also the policy of the United States that agencies' efforts and outcomes in implementing this order shall be transparent and that agencies shall therefore disclose results associated with the actions taken pursuant to this order on publicly available Federal websites.

Sec. 2. Goals for Agencies. In implementing the policy set forth in section 1 of this order, and preparing and implementing the Strategic Sustainability Performance Plan called for inspection 8 of this order, the head of each agency shall:

(a) within 90 days of the date of this order, establish and report to the Chair of the Council on Environmental Quality (Catchier) and the Director of the Office of Management and Budget (OMB Director) a percentage reduction target for agency-wide reductions of scope 1 and 2 greenhouse gas emissions in absolute terms by fiscal year 2020, relative to a fiscal year 2008baseline of the agency's scope 1 and 2 greenhouse gas emissions. Where appropriate, the target shall exclude direct emissions from excluded vehicles and equipment and from electric power produced and sold commercially to other parties in the course of regular business. This target shall be subject to review and approval by the CEQ Chair in consultation with the OMB Director under section 5 of this order. In establishing the target, the agency head shall consider reductions associated with: (i) reducing energy intensity in agency buildings; (ii) increasing agency use of renewable energy and implementing renewable energy generation projects on agency property; and (iii) reducing the use of fossil fuels by: (A) using low greenhouse gas emitting vehicles including alternative fuel vehicles; (B) optimizing the number of vehicles in the agency fleet; and (C) reducing, if the agency operates a fleet of at least 20 motor vehicles, the agency fleet's total consumption of petroleum products by a minimum of2 percent annually through the end of fiscal year2020, relative to a baseline of fiscal year 2005; (b) within 240 days of the date of this order and concurrent with submission of the Strategic Sustainability Performance Plan as described in section 8 of this order, establish and report to the CEQ Chair and the OMB Director a percentage reduction target for reducing agency-wide scope 3greenhouse gas emissions in absolute terms by fiscal year 2020,relative to a fiscal year 2008 baseline of agency scope 3emissions. This target shall be subject to review and approval by the CEQ Chair in consultation with the OMB Director under section 5 of this order. In establishing the target, the agency head shall consider reductions associated with: (i) pursuing opportunities with vendors and contractors to address and incorporate incentives to reduce greenhouse gas emissions(such as changes to manufacturing, utility or delivery services, modes of transportation used, or other changes in supply chain activities); (ii) implementing strategies and accommodations for transit, travel, training, and conferencing that actively support lower-carbon commuting and travel by agency staff; (iii) greenhouse gas emission reductions associated with pursuing other relevant goals in this section; and (iv) developing and implementing innovative policies and practices to address scope 3 greenhouse gas emissions unique to agency operations; (c) establish and report to the CEQ Chair and OMB Director a comprehensive inventory of absolute greenhouse gas emissions, including scope 1, scope 2, and specified scope 3 emissions(i) within 15 months of the date of this order for fiscal year 2010, and (ii) thereafter, annually at the end of January, for the preceding fiscal year. (d) improve water use efficiency and management by: (i) reducing potable water consumption intensity by2 percent annually through fiscal year 2020, or26 percent by the end of fiscal year 2020,relative to a baseline of the agency's water consumption in fiscal year 2007, by implementing water management strategies including water-efficient and low-flow fixtures and efficient cooling towers; (ii) reducing agency industrial, landscaping, and agricultural water consumption by 2 percent annually or 20 percent by the end of fiscal year 2020 relative to a baseline of the agency's industrial, landscaping, and agricultural water consumption in fiscal year2010; (iii) consistent with State law, identifying, promoting, and implementing water reuse strategies that reduce potable water consumption; and (iv) implementing and achieving the objectives identified in the storm water management guidance referenced in section 14 of this order; (e) promote pollution prevention and eliminate waste by: (i) minimizing the generation of waste and pollutants through source reduction; (ii) diverting at least 50 percent of non-hazardous solid waste, excluding construction and demolition debris, by the end of fiscal year2015; (iii) diverting at least 50 percent of construction and demolition materials and debris by the end of fiscal year 2015; (iv) reducing printing paper use and acquiring uncoated printing and writing paper containing at least 30 percent post consumer fiber; (v) reducing and minimizing the quantity of toxicant hazardous chemicals and materials acquired, used, or disposed of; (vi) increasing diversion of compostable and organic material from the waste stream; (vii) implementing integrated pest management and other appropriate landscape management practices; (viii) increasing agency use of acceptable alternative chemicals and processes in keeping with the agency's procurement policies; (ix) decreasing agency use of chemicals where such decrease will assist the agency in achieving greenhouse gas emission reduction targets under section 2(a) and (b) of this order; and (x) reporting in accordance with the requirements of sections 301 through 313 of the Emergency Planning and Community Right-to-Know Act of1986 (42 U.S.C. 11001 et seq.); (f) advance regional and local integrated planning by: (i) participating in regional transportation planning and recognizing existing community transportation infrastructure; (ii) aligning Federal policies to increase the effectiveness of local planning for energy choices such as locally generated renewable energy; (iii) ensuring that planning for new Federal facilities or new leases includes consideration of sites that are pedestrian friendly, near existing employment centers, and accessible to public transit, and emphasizes existing central cities and, in rural communities, existing or planned town centers; (iv) identifying and analyzing impacts from energy usage and alternative energy sources in all Environmental Impact Statements and Environmental Assessments for proposals for new or expanded Federal facilities under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.); and (v) coordinating with regional programs for Federal, State, tribal, and local ecosystem, watershed, and environmental management; (g) implement high performance sustainable Federal building design, construction, operation and management, maintenance, and deconstruction including by: (i) beginning in 2020 and thereafter, ensuring that all new Federal buildings that enter the planning process are designed to achieve zero-net-energy by 2030; (ii) ensuring that all new construction, major renovation, or repair and alteration of Federal buildings complies with the Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings (Guiding Principles); (iii) ensuring that at least 15 percent of the agency's existing buildings (above 5,000 gross square feet) and building leases (above 5,000 gross square feet) meet the Guiding Principles by fiscal year 2015 and that the agency makes annual progress toward 100-percent conformance with the Guiding Principles for its building inventory; (iv) pursuing cost-effective, innovative strategies, such as highly reflective and vegetated roofs, to minimize consumption of energy, water, and materials; (v) managing existing building systems to reduce the consumption of energy, water, and materials, and identifying alternatives to renovation that reduce existing assets' deferred maintenance costs; (vi) when adding assets to the agency's real property inventory, identifying opportunities to consolidate and dispose of existing assets, optimize the performance of the agency's real-property portfolio, and reduce associated environmental impacts; and (vii) ensuring that rehabilitation of federally owned historic buildings utilizes best practices and technologies in retrofitting to promote long-term viability of the buildings; (h) advance sustainable acquisition to ensure that95 percent of new contract actions including task and delivery orders, for products and services with the exception of acquisition of weapon systems, are energy-efficient (Energy Star or Federal Energy Management Program (FEMP) designated), water-efficient, biobased, environmentally preferable (e.g., Electronic Product Environmental Assessment Tool (EPEAT) certified), non-ozone depleting, contain recycled content, or are non-toxic or less-toxic alternatives, where such products and services meet agency performance requirements; (i) promote electronics stewardship, in particular by: (i) ensuring procurement preference for EPEAT-registered electronic products; (ii) establishing and implementing policies to enable power management, duplex printing, and other energy-efficient or environmentally preferable features on all eligible agency electronic products; (iii) employing environmentally sound practices with respect to the agency's disposition of all agency excess or surplus electronic products; (iv) ensuring the procurement of Energy Star and FEMP designated electronic equipment; (v) implementing best management practices for energy-efficient management of servers and Federal data centers; and (j) sustain environmental management, including by: (i) continuing implementation of formal environmental management systems at all appropriate organizational levels; and (ii) ensuring these formal systems are appropriately implemented and maintained to achieve the performance necessary to meet the goals of this order. Sec. 3. Steering Committee on Federal Sustainability. The OMB Director and the CEQ Chair shall: (a) establish an interagency Steering Committee (Steering Committee) on Federal Sustainability composed of the Federal Environmental Executive, designated under section 6 of Executive Order 13423 of January 24, 2007, and Agency Senior Sustainability Officers, designated under section 7 of this order, and that shall: (i) serve in the dual capacity of the Steering Committee on Strengthening Federal Environmental, Energy, and Transportation Management designated by the CEQ Chair pursuant to section 4 of Executive Order 13423; (ii) advise the OMB Director and the CEQ Chair on implementation of this order; (iii) facilitate the implementation of each agency's Strategic Sustainability Performance Plan; and (iv) share information and promote progress towards the goals of this order; (b) enlist the support of other organizations within the Federal Government to assist the Steering Committee in addressing the goals of this order; (c) establish and disband, as appropriate, interagency subcommittees of the Steering Committee, to assist the Steering Committee in carrying out its responsibilities; (d) determine appropriate Federal actions to achieve the policy of section 1 and the goals of section 2 of this order; (e) ensure that Federal agencies are held accountable for conformance with the requirements of this order; and (f) in coordination with the Department of Energy's Federal Energy Management Program and the Office of the Federal Environmental Executive designated under section 6 of Executive Order 13423, provide guidance and assistance to facilitate the development of agency targets for greenhouse gas emission reductions required under subsections 2(a) and (b) of this order. Sec. 4. Additional Duties of the Director of the Office of Management and Budget. In addition to the duties of the OMB Director specified elsewhere in this order, the OMB Director shall Sec. 6. Duties of the Federal Environmental Executive. The Federal Environmental Executive designated by the President to head the Office of the Federal Environmental Executive, pursuant to section 6 of Executive Order 13423, shall: (a) identify strategies and tools to assist Federal implementation efforts under this order, including through the sharing of best practices from successful Federal sustainability efforts; and (b) monitor and advise the CEQ Chair and the OMB Director on the agencies' implementation of this order and their progressing achieving the order=s policies and goals. Sec. 7. Agency Senior Sustainability Officers. (a) Within 30 days of the date of this order, the head of each agency shall designate from among the agency's senior management officials a Senior Sustainability Officer who shall be accountable for agency conformance with the requirements of this order; and shall report such designation to the OMB Director and the CEQ Chair. (b) The Senior Sustainability Officer for each agency shall perform the functions of the senior agency official designated by the head of each agency pursuant to section 3(d)(i) of Executive Order 13423 and shall be responsible for: (i) preparing the targets for agency-wide reductions and the inventory of greenhouse gas emissions required under subsections 2(a), (b), and (c) of this order; (ii) within 240 days of the date of this order, and annually thereafter, preparing and submitting to the CEQ Chair and the OMB Director, for their review and approval, a multi-year Strategic Sustainability Performance Plan (Sustainability Plan or Plan) as described in section 8 of this order; (iii) preparing and implementing the approved Plan in coordination with appropriate offices and organizations within the agency including the General Counsel, Chief Information Officer, Chief Acquisition Officer, Chief Financial Officer, and Senior Real Property Officers, and in coordination with other agency plans, policies, and activities; (iv) monitoring the agency's performance and progressing implementing the Plan, and reporting the performance and progress to the CEQ Chair and the OMB Director, on such schedule and in such format as the Chair and the Director may require; and (v) reporting annually to the head of the agency on the adequacy and effectiveness of the agency's Plan in implementing this order. Sec. 8. Agency Strategic Sustainability Performance Plan. Each agency shall develop, implement, and annually update an integrated Strategic Sustainability Performance Plan that will prioritize agency actions based on lifecycle return on investment. Each agency Plan and update shall be subject to approval by the OMB Director under section 4 of this order. With respect to the period beginning in fiscal year 2011 and continuing through the end of fiscal year 2021, each agency Plans hall:

include a policy statement committing the agency to compliance with environmental and energy statutes, regulations, and Executive Orders;

achieve the sustainability goals and targets, including greenhouse gas reduction targets, established under section 2 of this order;

be integrated into the agency's strategic planning and budget process, including the agency's strategic plan under section 3 of the Government Performance and Results Act of 1993,as amended (5 U.S.C. 306);

identify agency activities, policies, plans, procedures, and practices that are relevant to the agency's implementation of this order, and where necessary, provide for development and implementation of new or revised policies, plans, procedures, and practices;

identify specific agency goals, a schedule, milestones, and approaches for achieving results, and quantifiable metrics for agency implementation of this order;

take into consideration environmental measures as well as economic and social benefits and costs in evaluating projects and activities based on lifecycle return on investment;

outline planned actions to provide information about agency progress and performance with respect to achieving the goals of this order on a publicly available Federal website;

incorporate actions for achieving progress metrics identified by the OMB Director and the CEQ Chair;

evaluate agency climate-change risks and vulnerabilities to manage the effects of climate change on the agency's operations and mission in both the short and long term; and

identify in annual updates opportunities for improvement and evaluation of past performance in order to extend or expand projects that have net lifecycle benefits, and reassess or discontinue under-performing projects.

Sec. 9. Recommendations for Greenhouse Gas Accounting and Reporting. The Department of Energy, through its Federal Energy Management Program, and in coordination with the Environmental Protection Agency, the Department of Defense, the General Services Administration, the Department of the Interior, the Department of Commerce, and other agencies as appropriate, shall:

within 180 days of the date of this order develop and provide to the CEQ Chair recommended Federal greenhouse gas reporting and accounting procedures for agencies to use in carrying out their obligations under subsections 2(a), (b), and

agency of the Federal Government that is used in: (i) combat support, combat service support, tactical or relief operations, or training for such operations; (ii) Federal law enforcement (including protective service and investigation); (iii) emergency response (including fire and rescue);or (iv) spaceflight vehicles (including associated ground-support equipment); (i) "greenhouse gases" means carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons, and sulfur hexafluoride; (j) "renewable energy" means energy produced by solar, wind, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project; (k) "scope 1, 2, and 3" mean; (i) scope 1: direct greenhouse gas emissions from sources that are owned or controlled by the Federal agency; (ii) scope 2: direct greenhouse gas emissions resulting from the generation of electricity, heat, or steam purchased by a Federal agency; and (iii) scope 3: greenhouse gas emissions from sources not owned or directly controlled by a Federal agency but related to agency activities such as vendor supply chains, delivery services, and employee travel and commuting; (l) "sustainability" and "sustainable" mean to create and maintain conditions, under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic, and other requirements of present and future generations; (m) "United States" means the fifty States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, and the Northern Mariana Islands, and associated territorial waters and airspace; (n) "water consumption intensity" means water consumption per square foot of building space; and (o) "zero-net-energy building" means a building that is designed, constructed, and operated to require a greatly reduced quantity of energy to operate, meet the balance of energy needs from sources of energy that do not produce greenhouse gases, and therefore result in no net emissions of greenhouse gases and be economically viable. Sec. 20. General Provisions. (a) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations. (b)

Nothing in this order shall be construed to impair or otherwise affect the functions of the OMB Director relating to budgetary, administrative, or legislative proposals.

This order is intended only to improve the internal management of the Federal Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

CERCLA's Unrecoverable Natural Resource Damages: Injuries to Cultural Resources and Services

Introduction

Confusion over what damages are recoverable as natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and other federal statutes abounds, giving credence to the oft-repeated phrase that “CERCLA is not a model of legislative clarity.” [1] Among other things, confusion appears in discussions among the Department of the Interior , legislators, and courts regarding the recoverability of cultural resource damages as NRD under CERCLA. But the statute and caselaw are clear. As demonstrated here, CERCLA establishes that injuries to cultural resources, [2] no matter how they are described, are not recoverable as NRD.

Background on NRD

Natural resources within the meaning of CERCLA invoke geological and biological entities—“land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources” that belong to, are managed by, are held in trust by, or pertain to or are controlled by the United States, state or local governments, or Indian tribes . [9] NRD claims arise from injuries to such resources from releases and threatened releases of hazardous substances. Under CERCLA's NRD scheme, owners, operators, arrangers , and transporters can be liable for “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from [a release of hazardous substances].” [10] That is, NRD are calculated by adding the cost of restoring the injured resource, compensation for the interim loss of use of the resource from injury to restoration, and the cost of assessing the damages. [11]

Private parties may not bring suit for NRD recovery. CERCLA does not allow private parties to recover damages for injuries to natural resources held in trust by federal, state, or tribal governments, nor does it allow federal, state, or tribal trustees to recover damages for injuries to private property or private interests. [12] “[D]amage to private property—absent any government involvement, management or control—is not covered by the natural resource damage provisions of [CERCLA].” [13] Instead, NRD liability flows to the trustees of the natural resources: the United States, and the individual states, “for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State,” and Indian tribes “for natural resources belonging to, managed by, controlled by, or appertaining to such tribe.” [14] A government or tribe's ownership, management, control, or trusteeship over the resource is a question of fact and law . [15]

Are Injuries to Cultural Resources Recoverable?

One question that arises is whether injuries to cultural resources are compensable as NRD under CERCLA. At the very least, it is clear that unlike some of the federal statutes that include NRD recovery schemes, CERCLA's definition of “natural resources” does not specifically reference cultural resources. That is, of the five federal statutes that provide for the recovery of NRD—the CWA, OPA, NMSA, the PSRPA, and CERCLA—both the NMSA and the PSRPA provide for recovery for injuries to natural resources that specifically include “non-living,” or “cultural” resources. [16] CERCLA, OPA, and the CWA do not.

In light of the broad resource definitions in the NMSA and the PSRPA, the exclusion of reference to “non-living” or “cultural” resources in CERCLA's resource definition suggests that injuries to cultural resources, however characterized, are not recoverable under CERCLA. The OPA and CWA define “natural resources” as does CERCLA only in the context of water, air, geological, and biological resources, and without any reference to “cultural resources.” [17] By comparison, the NMSA defines protected marine resources as including any “nonliving” resource that “contributes to the conservation, recreational, ecological, historical, educational, cultural , archeological, scientific, or aesthetic value of a sanctuary.” [18] Similarly, the PSRPA broadly defines protected resources in the National Park system as any “living or non-living resource,” the latter of which has been interpreted to include cultural resources. [19] Given that only five federal statutes provide for NRD recovery, that the NMSA's resource definition includes reference to “nonliving” resources and “cultural” values, and that the PSRPA's resource definition likewise includes reference to “non-living” resources, which have been interpreted to include cultural resources, the fact that CERCLA's resource definition excludes reference to “non-living” or “cultural” resources suggests that CERCLA does not establish recovery for injuries to cultural resources, regardless of how such injuries are characterized.

The Department of the Interior (Department or DOI) appears to have confirmed this fact. But in so doing, the Department has generated confusion by attempting to distinguish between cultural resources and cultural services , which seems to be a distinction without a practical difference. In 1994, the Department promulgated regulations for assessing NRD under the CWA and CERCLA. [20] In the “comment” and “response to comment” section of the preamble to its final regulations, the DOI sowed confusion regarding whether injuries to cultural resources are recoverable as injuries to natural resources under CERCLA.

First, the Department stated that “ archaeological ” and “ cultural ” resources are not “land, fish, wildlife, biota , air, ground water, drinking water supplies, or other such resources” such that archaeological and cultural resources “do not constitute ‘natural' resources under CERCLA.” [21] Unfortunately, the Department did not stop there. The DOI went on to instruct that although archaeological and cultural resources are not “natural resources” under CERCLA, federal, state, and tribal trustees may “include the loss of archaeological and other cultural services provided by a natural resource in a natural resource damage assessment.” [22] The DOI then tried to provide an example of a scenario in which the loss of an archaeological or cultural service provided by a natural resource might be recoverable as NRD:

For example, if land constituting a CERCLA-defined natural resource contains archaeological artifacts, then that land might provide the service of supporting archaeological research. If an injury to the land causes a reduction in the level of service (archaeological research) that could be performed, trustee officials could recover damages for the lost service. [23]

This example has done little to clarify or explain how recovery for “the loss of archaeological and other cultural services” (which DOI suggests is provided for under CERCLA's NRD scheme) is different than recovery for injuries to archaeological and cultural resources (which DOI acknowledges that CERCLA does not allow).

Since the 1994 regulations, the Department has continued to publish conflicting information about the recoverability of cultural resource damages as NRD under CERCLA. For example, in 2003 the National Park Service , one of DOI's eight bureaus, published its Damage Assessment and Restoration Handbook (Handbook) to provide guidance for damages assessment within the National Park Service. [24] The Handbook largely addresses NRD assessments under the PSRPA, and the National Park Service confirms therein that resources protected by the PSRPA include both natural resources and, specifically, “cultural resources.” [25] The Handbook contains a comparison of recoverable NRD under the PSRPA, CERCLA, and OPA. According to the National Park Service, while CERCLA and OPA only protect natural resources and associated services, the PSRPA “ extends to cultural resources (e.g., historic sites , structures, objects, and landscapes) and physical facilities (e.g., signage, buildings, docks, and roads), and their associated services.” [26] Thus, as stated the Handbook, the NPS and DOI frankly acknowledge that the PSRPA “covers a broader range of resources” than CERCLA and OPA, which “do not necessarily address injuries to cultural resources and park facilities.” [27]

The DOI's confusing distinction appears to have had little success in convincing lawmakers and practitioners that there is a meaningful difference between the two theories of recovery. In 1996, various “Industry Petitioners” challenged the 1994 DOI regulations for NRD assessments before the D.C. Circuit in Kennecott Utah Copper Corp. v. U.S. Department of the Interior . [29] There, the industry petitioners challenged DOI's instructions in the preamble that an NRD assessment may include the archaeological and cultural services provided by a natural resource, pointing out that archaeological and cultural resources are conspicuously absent from CERCLA's definition of “natural resources.” [30] Unfortunately, the court held that the issue was not ripe for review. However, in so holding, the court characterized DOI's instructions as allowing for “recovery for injury to non-natural resources” and not, as DOI would have it, as allowing for recovery for injury to archaeological or cultural services provided by a natural resource. [31]

Furthermore, in Coeur D'Alene Tribe v. Asarco, Inc. , the District Court for the District of Idaho determined that “cultural uses of water and soil by [the plaintiff Indian tribe] are not recoverable as NRD.” [32] That is, the court held that cultural services supported by the water and soil resources at issue were not recoverable as NRD. Also, in its analysis of whether various plaintiffs were “trustees” of the resources sufficient to have standing to pursue NRD claims, the court was likewise not persuaded by the tribe's argument that the natural resources “appertain[ed] to” it. [33] The court noted that,

While the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource “belong or be connected as a rightful part or attribute” for purposes of trusteeship analysis. [34]

Legislative history also suggests that Congress did not intend for CERCLA to provide for recovery for injury to cultural resources. In 1995, U.S. Representative Elizabeth Furse (D-Ore.), during a hearing of the Commerce, Trade, and Hazardous Materials Subcommittee , introduced an amendment to add to CERCLA a provision that would allow for the “recovery of NRD for so-called non-use values .” [35] In language similar to DOI's sometimes-used guidance that NRD assessments may include losses of archeological or cultural services provided by a resource, the amendment was described as providing for compensation under CERCLA's NRD provisions for the “intangible . . . aesthetic, cultural and religious values attached to natural resources that have been destroyed or damaged by toxic contamination.” [36] Representative Furse further explained that without the amendment she proposed, CERCLA would not allow for recovery of damages accounting for the cultural importance of an injured natural resource. [37] By way of example, she described Indian tribes that rely on salmon from the Columbia River for important tribal ceremonies . As explained by Representative Furse, the amendment was necessary to allow for compensation to Indian tribes for loss of that cultural ceremony stemming from injury to the salmon or the salmon's habitat . [38]

As has often been repeated, CERCLA's primary purposes are to ensure timely and effective cleanup of waste disposal sites, and to ensure that the parties responsible for such waste bear the costs of restoration and remediation. [43] In fact, the Department's 2008 amendments to the NRD assessment regulations were designed to emphasize restoration of resources over monetary damages. [44] CERCLA notably excludes “cultural resources” from its definition of natural resources. Therefore, cultural resource damages cannot be recovered as NRD, regardless of whether couched as losses of cultural services provided by a natural resource. These losses are the same, and until and unless Congress amends CERCLA, cultural resource damages are not recoverable.

* Sarah Peterman is a senior associate in the Environmental Law Department at Farella Braun + Martel LLP . Her practice is focused on environmental and natural resources litigation and counseling.

[2] The analysis and arguments presented herein likely also establish that injuries to archaeological resources and services are not recoverable under CERCLA; however, that is the topic for another article, as this Article focuses on whether injuries to cultural resources and services are recoverable as NRD under CERCLA.

[8] 42 U.S.C. § 9607 (2006). CWA, OPA, NMSA, PSRPA, and CERCLA are not to be confused with the National Historic Preservation Act , 16 U.S.C. §§ 470–470X-6 (2006), which does not provide for recovery of NRD. Some states have separate laws authorizing recovery of NRD as well. See, e.g. , New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1245 n.31 (10th Cir. 2006); Legal Authority , N.M Off. Nat. Resources Tr. (Sept. 1, 2009); Natural Resource Damages , Dep't Envtl. Conservation (last visited Feb. 4, 2011); Natural Resource Restoration , Dep't Envtl. Prot. (Nov. 29, 2005).

[11] Note that CERCLA NRD assessments may include recovery for “non-use” values as well. 43 C.F.R. § 11.83(c)(1) (2010) (“The compensable value can include the economic value of lost services provided by the injured resource, including both public use and nonuse values.”); Notification and Coordination with Natural Resource Trustees , U.S. Envtl. Prot. Agency (Oct. 1, 2010).

[12] Coeur D'Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1115 (D. Idaho 2003).

[14] 42 U.S.C. § 9607(f)(1) (2006); see 42 U.S.C. § 9607(f)(2)(B) (authorizing state governors to designate state officials, including local municipalities, to act as trustees for the purpose of recovering NRD).

[16] The author is not taking a position on whether injuries to cultural resources are compensable under NMSA and PSRPA.

[20] See 43 C.F.R. §§ 11.10–11.93 (2010); Natural Resource Damage Assessments, 59 Fed. Reg. 14,262, 14,262 (Mar. 25, 1994) (to be codified at 43 C.F.R. pt. 11).

[28] Natural Resource Damages for Hazardous Substances, 73 Fed. Reg. 57,259, 57,264 (Oct. 2, 2008).

[32] Coeur D'Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1107 (D. Idaho 2003).

[35] Superfund Legislation: Hearing of the Commerce, Trade and Hazardous Materials Subcomm. of the H. Commerce Comm. , 104th Cong. (1995).

[42] The author additionally located no federal or state cases awarding NRD under CERCLA for cultural uses, cultural losses, or cultural values.

[44] Natural Resource Damages for Hazardous Substances, 73 Fed. Reg. 57,259, 57,260 (Oct. 2, 2008).

Corps of Engineers Issues Permit for Reylas Surface Mine in West Virginia

HUNTINGTON, W.Va.... The Huntington District, U.S. Army Corps of
Engineers has issued a Department of the Army Permit to Highland Mining
Company to allow the discharge of fill material into 13,743 linear feet of
waters of the United States in conjunction with the Reylas Surface Mine in
Logan County, West Virginia.

The permit authorizes one valley fill, one sediment pond and several
mine-through areas. The permit, as authorized, represents the least
environmentally damaging practicable alternative while meeting the projects
stated purpose and need.

As a result of the Corps' permitting process, the applicant reduced
impacts to 400 linear feet of perennial stream while eliminating the future
extraction of approximately 2.5 million tons of coal. To mitigate for impacts
to waters of the United States, the applicant is required to restore 1,154
linear feet of stream channel and create 28,960 linear feet of stream channel
on-site.

After mining and reclamation, the site will have a post-mine land use of
emergency FEMA housing and associated infrastructure in accordance with the
West Virginia Department of Environmental Protection Surface Mining Control
and Reclamation Act Permit.

EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide Discharges Today, the U.S. Environmental Protection Agency (EPA) is requesting an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA is requesting that the deadline be extended from April 9, 2011 to October 31, 2011. During the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act. EPA is developing a pesticide general permit in response to the 6th Circuit Court?s 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and, therefore, will require a permit under the Clean Water Act as of April 9, 2011. The final permit will reduce discharges of pesticides to aquatic ecosystems, thus helping to protect the nation?s waters and public health. The extension request is important to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency?s general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements. EPA?s general permit will be available to cover pesticide discharges to waters of the U.S. in MA, NH, NM, ID, OK, AK, DC, most U.S. territories and Indian country lands, and many federal facilities. For more information: http://www.epa.gov/npdes/pesticides *********************************************** EPA distributes its Pesticide Program Updates to external stakeholders and citizens who have expressed an interest in pesticide activities and decisions. This update service is part of EPA's continuing effort to improve public access to Federal pesticide information. For general questions on pesticides and pesticide poisoning prevention, contact the National Pesticide Information Center (NPIC), toll free, at: 1-800-858-7378, by E-mail at npic@ace.orst.edu, or by visiting their website at: http://npic.orst.edu/ To report an environmental violation, visit EPA's website at http://www.epa.gov/compliance/complaints/index.html For information about EPA's pesticide program, visit our homepage at: http://www.epa.gov/pesticides/

§ 2342. Jurisdiction of court of appeals

§ 2350. Review in Supreme Court on certiorari or certification

§ 2349. Jurisdiction of the proceeding

§ 2344. Review of orders; time; notice; contents of petition; service

How Current is This? On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of— (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.

§ 20114. Judicial procedures

§ 210. Proceedings before Secretary for violations

(f) Enforcement of orders If the defendant does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may within one year of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the defendant or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Secretary in the premises. Such suit in the district court shall proceed in all respects like other civil suits for damages except that the findings and orders of the Secretary shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit.

§ 499g. Reparation order

H.R. 1 contains language (Section 1747) that would prevent EPA and the Army Corps of Engineers from issuing or enforcing new guidance regarding which water bodies in the United States are protected under the Clean Water Act.

House targets NPDES permits, EPA seeks delay

Until a Sixth Circuit Court three-judge panel ruling in early 2009, the EPA was content with exempting label-adhering pesticide applications from the permitting requirements of the Clean Water Act. That changed when the panel ruled pesticides are “pollutants” in regard to the CWA and the EPA must require farmers to obtain NPDES permits for applications made to, over or near bodies of water.Further complicating the situation: the new permits under CWA would be duplicative since pesticide applications are already regulated under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA).

While environmental groups cheered the court decision, the burdensome NPDES permitting process quickly became a concern for, among others, producers, ranchers, consultants, applicators, commodity groups, those tasked with mosquito control, and state governments.

Over the last several years, the courts – including the U.S. Supreme Court – have provided no help to those opposed to the new permits. Meanwhile, the EPA has struggled to meet NPDES implementation deadlines.

In fact, the EPA has been called out repeatedly for an unwillingness to admit the length of time required to set up such a permitting system. Last September, Arkansas Sen. Blanche Lincoln, then-Chairman of the Senate Agriculture Committee, was pointed in her remarks to EPA Administrator Lisa Jackson.

“CWA regulations are an unnecessary burden not only to applicators but to state regulatory authorities,” Lincoln told Jackson. “States like Arkansas are underfunded and struggle to keep up with existing laws and regulations and don't need to spend time enforcing regulations that don't improve the environment. … States are supposed to implement their permitting programs by April, 2011. Frankly, I'm amazed your agency expects states to implement that general permit into law in a mere four months time. … We're at the end of September and the possibility of (adhering to the proposed EPA) timeframe become more and more bleak.”

Superfund's 30th Anniversary: 30 Years of Protecting Communities and the Environment

History
It's easy to forget that there was a time in the United States when EPA lacked the legal authority to clean up hazardous waste sites like Love Canal, New York, or to respond to emergencies such as train derailments involving dangerous chemicals. Even though the EPA had been established for ten years, it was not until December 11, 1980, that President Jimmy Carter signed into law the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). This historic new statute gave EPA the authority to clean up uncontrolled hazardous waste sites and spills.(To view an interactive 30-year timeline of the Superfund program, click here .)

Scope of Activities
The Superfund law authorizes the Agency and its partners to address abandoned, accidentally spilled, and illegally dumped hazardous wastes that pose current or future threats to human health or the environment. Through the years EPA has used its Superfund authority to address national crises like the Columbia space shuttle disaster, and hurricanes Katrina and Rita, and most recently, the British Petroleum oil spill response.

Equally important, however, are the sites where EPA has used its long-term cleanup authority to remediate sites where the hazardous waste release did not occur through a sudden tragedy like the Columbia shuttle disaster or through natural causes like hurricanes, but, rather, through years of poor and sometimes illegal waste management practices. Some of these sites can involve hundreds of chemicals with tons of contaminated waste spanning hundreds of acres; often the contamination affects groundwater in addition to soil. Sometimes housing developments are in close proximity if not on the site itself. These can be highly complex sites, requiring years of cleanup activities. Nonetheless, EPA works with its partners to address these sites so that they can be returned to communities for productive use.

Progress
For the past 30 years, the Superfund program has been making substantial progress protecting thousands of communities by cleaning up the Nation's most serious hazardous waste sites and by responding to thousands of oil and chemical spills. EPA has completed construction of cleanup remedies at 67.5 percent of final and deleted sites on the National Priorities List. The Agency has readied nearly 1.3 million acres of land for return to productive use, and more than 455,800 acres are ready for anticipated use. With passage of the American Recovery and Reinvestment Act (ARRA), the Superfund program has applied $600 million in ARRA funds to accelerate cleanups at 31 ongoing construction projects and to start new construction projects at 26 sites.

Looking Forward
EPA is proud of our progress, but as the program enters its fourth decade, we believe we have the opportunity to improve Superfund's efficiency and management, as well as that of EPA's other cleanup programs. To that end, EPA has begun implementation of an initiative to better use the Agency's land cleanup authorities to accelerate cleanups where possible, address a greater number of contaminated sites, and put these sites back into productive use while protecting human health and the environment. Through the Integrated Cleanup Initiative, EPA is bringing all of its resources to bear to clean up contaminated sites.

Washington Post: Scientists Want to Help Regulators Decide Safety of Chemicals
Today

Summary : A group of scientists wrote a letter to the FDA and EPA urging the agencies to consider other factors besides toxicology when determining the safety of chemicals such as BPA, which is used in plastic goods and can leach into food and drink.

The government has long claimed that the levels of BPA used in products are not toxic and therefore safe, but growing research by endocrinologists and other specialists "has shown that low levels of BPA can cause changes in activity at the cellular level that cause health effects over time in laboratory animals."

Boiler Room Politics

Fake restraint from the EPA as it issues a damaging new rule.

Amid an Environmental Protection Agency regulatory spree unprecedented in U.S. history, nothing cleared the benches last year like the so-called boiler rule. Some 62 Senators, 177 House Members and 21 Governors publicly objected, business staged a collective revolt, and the EPA itself was forced to retreat and junk the original rule. No matter how ruinous a regulation, this almost never happens.

The problem is that the new rule, which came out last week and is meant to reduce air pollutants like mercury from industrial boilers, is nearly as bad. The Atlantic is smaller than the Pacific, but they're both pretty ...

Monday, the House of Representatives passed an extension of the FY2011 Continuing Resolution (CR) until March 18, 2011. The bill incorporates the $4 billion in cuts recommended by the House Appropriations Committee. The measure now goes to the Senate, which is expected to take it up Wednesday or Thursday.

The $4 billion in additional funding cuts are expected to meet with little resistance in the Senate. These cuts target programs and projects that the president terminated or for which he did not request funding in his FY2012 budget. However, Senate Democrats, along with most observers, think that two more weeks is not enough time to finalize FY2011 appropriations. And , they are more worried that another short-term extension after March 18 could carry even more cuts. Some House Republicans have indicated that they would support a series of short-term CR extensions each of which would include additional cuts. As a result, Senate Democrat leaders (with support from the White House) have considered proposing an alternative that extends the current CR until April 8. However, this idea appears to be losing traction as House Republican leaders have signaled that they would only agree to a two-week extension.

Therefore, with the March 4 deadline fast approaching, the House resisting an alternative to their two-week extension, and few in Congress wanting to cause a government shut down, the Senate will most likely agree to the House bill. And, the CR saga will continue.

Continuing Budget Resolution Puts Security at Risk

WASHINGTON, March 1, 2011 – The Defense Department is losing billions of dollars by Congress' failure to pass the department's fiscal 2011 budget, putting readiness, modernization and efficiency initiatives at risk, the deputy defense secretary said today.

The department has gone five months into the fiscal year under a continuing budget resolution that holds appropriations at their previous levels, William J. Lynn III told members of a Senate appropriations subcommittee.

“In a time of war, with soldiers, sailors, airmen and Marines on the front lines, this is no time to do a continuing resolution,” Lynn said. He quoted Defense Secretary Robert M. Gates in saying that failure to pass the current year's budget is “a crisis at our doorstep” that “will damage national security.”

To continue to work under the continuing budget resolution would result in “the worst of all possible reductions” to the defense budget that would “hollow out” the military during wartime, Gates said at a congressional hearing in January.

The department requested $549 billion for the fiscal 2011 budget, Lynn said, and requiring it to support operations under a continuing resolution until Sept. 30, when the budget year ends, will cause it to lose about $23 billion.

“It's detrimental to readiness, to modernization, and to efficient business practices,” he said.

The services have had to cut flying hours, defer equipment maintenance and stop acquisitions programs, such as those for a Navy destroyer, a new Virginia-class submarine and Army Humvee vehicles, Lynn said.

“The services have delayed 75 projects that affect our capabilities and quality of life for our service men and women,” he said.

“If we have to continue under the CR, problems like these would snowball,” Lynn told the subcommittee. “We would be forced to play a shell game; we would have to rob Peter to pay Paul.”

Lynn was joined by the department's comptroller, Robert F. Hale, who confirmed that department officials have to take money from accounts that pay things like training, maintenance and acquisitions to fund “must-pay” bills such as salaries and health care coverage.

Operating under a continuing resolution makes the department less efficient -- contrary to Gates' efficiencies initiative that has found more than $150 billion in savings since it was announced in August, Lynn and Hale said.

The senior defense officials said programs and projects that are delayed or postponed end up costing more, and often with lower workmanship, because they tend to get rushed.

Lynn also said he's concerned about the unknowns in the current budget environment.

“Since we've never had a year-long continuing resolution for defense, and certainly never operated under one during a time of war, it's the effects we haven't thought of that I'm more worried about,” he said.

Asked about a possible governmentwide shutdown by Congress, Lynn said the department would have to furlough up to half of its civilian workers.

“It certainly would cause enormous destruction and enormous distraction, and it's something I think the country would want to avoid at a time of war,” he said.

Lynn also spoke to the department's fiscal 2012 budget request of $671 billion, which was submitted to Congress last month. The request, he said, is “reasonable in meeting our national security needs and prudent in meeting the president's deficit reduction plans.”

Still, Lynn said it seemed premature to talk about next year's budget before Congress has approved that for the current year.

“In our view, this is not a workable situation,” he said of the continuing resolution.

H.R. 394

Federal Courts Jurisdiction and Venue Clarification Act of 2011

CONTACT:
Jalil Isa (News Media Only)
isa.jalil@epa.gov
202-564-3226
202-564-4355

FOR IMMEDIATE RELEASE
March 3, 2011

EPA Accepting Applications for Environmental Education Grant Funding

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is accepting grant applications for $1.9 million in funding for environmental education projects and programs. The purpose of the grants is to promote environmental stewardship and help develop knowledgeable and responsible students, teachers and citizens. EPA expects to award at least 20 grants nationwide ranging from a minimum of $15,000 to a maximum of $100,000 and will accept applications until May 2, 2011.

The grants provide financial support for innovative projects that design, demonstrate, and/or disseminate environmental education practices, methods, or techniques. Projects should involve environmental education activities that go beyond disseminating information.

EPA will be hosting two conference calls for potential applicants interested in additional information about the application process. The conference calls will take place on March 21, 2011 at 11 a.m. Eastern Daylight Time (EDT) and April 6 at 2 p.m. (EDT). To participate in the conference calls, dial: 1-866-379-5082, and use conference ID number: 48699133 for the call on March 21. Use conference ID number: 48696117 for the call on April 6.

The Environmental Education Grant Program provides funding to local education agencies, state education or environmental agencies, colleges or universities, not-for-profit organizations, or noncommercial educational broadcasting entities. Tribal education agencies, which are controlled by an Indian tribe, band or nation, may also apply, including a school or community college.

Since the program began, EPA has provided more than $50 million in funding to more than 3,000 agencies and organizations.

More information on eligibility and application materials:
http://www.epa.gov/enviroed/grants.html

For Immediate Release: March 3, 2011
Contact: Dean Higuchi, 808-541-2711, higuchi.dean@epa.gov

U.S. EPA and Hawai'i Department of Health present award to the County of Kauai
County receives “Pisces Award” for wastewater system work

HONOLULU – The U.S. Environmental Protection Agency and the Hawai'i Department of Health today honored the County of Kauai with the 2011 Hawai'i Clean Water State Revolving Fund Project of the Year Award.

The project, upgrading and expanding the Waimea Wastewater Treatment Plant with a photovoltaic system and a water reuse component, is financed by a total of $15.6 million in federal funding, a $8.2 million loan from the Hawai'i Clean Water State Revolving Fund administered by the Hawai'i Department of Health, and $7.4 million in American Reinvestment and Recovery Act (ARRA) funding.

The county's effort is a green project promoting water and energy efficiency that will increase the plant's capacity from 300,000 to 700,000 gallons per day. The wastewater will be treated to standards that will encourage its reuse on parks, school fields, and a future golf course in the Waimea area. The county will install a photovoltaic system supplying about 70 percent of the power needed to run the expanded plant. This will offset the additional power demands, resulting in increased capacity while providing better reuse water using renewable energy.

The “Pisces Award” recognizes the most innovative and effective clean water loan projects. States could nominate one project for the award and the project needs to be in compliance with the Clean Water Act, demonstrates financial integrity by showing no financial problems with the project, and has high health benefits.

EPA Struggles to Keep Up With Its Growing Burdens, Report Finds

Chemical assessments are a vital way for the Environmental Protection Agency to warn the public about potential health hazards from many substances, but the agency is falling way behind on its work.

A wide-ranging new report from the Government Accountability Office found that the EPA has gotten so backed up that certain chemicals have gone for more than a decade without an evaluation from the agency. As the Center for Public Integrity notes , an assessment of dioxin has been pending for 19 years, while a formaldehyde evaluation has lingered for 13.

In other areas, too, the GAO questions whether the EPA can keep up with the nation's needs. The report says the Superfund hazardous waste cleanup effort, which was launched three decades ago, can't come up with reliable estimates of how much money it will need to finish its work because the agency is hampered by poor and incomplete data.

Water quality is another major concern. The report cited the deterioration of the Great Lakes and the Chesapeake Bay, the nation's premier watersheds, along with the problem of aging water treatment plans and other decaying infrastructure. The GAO estimates that it could cost up to $1.2 trillion, through 2029, to adequately upgrade the nation's water infrastructure.

On top of these longstanding issues, the EPA is taking on an emerging role — though one that increasingly is coming under fire in Congress — in combating climate change. Yet, the GAO report notes, the EPA's budget has only kept pace with inflation since 2000.

The report's recommendations, however, are standard fare: enhanced oversight, improved information for regulatory decision-making and better coordination with other agencies.

House Republicans can claim "bipartisanship" in their bid to handcuff the EPA's climate change rules.

Rep. Collin Peterson (D-Minn.) told POLITICO on Wednesday that he will be co-sponsoring the legislation from House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. Ed Whitfield (R-Ky.) that puts a freeze on EPA's regulatory agenda for major industrial polluters like power plants and petroleum refiners.

Improvements in Managing Research and Development Could Help Reduce Inefficiencies and Costs for Homeland Security

FEMA Needs to Improve Its Oversight of Grants and Establish a Framework for Assessing Capabilities to Identify Gaps and Prioritize Investments
Total Compensation Approach Is Needed to Manage Significant Growth in Military Personnel Costs.

Agencies Could Realize Cost Savings by Disposal of Unneeded Federal Real Property

Improved Cost Analyses Used for Making Federal Facility Ownership and Leasing Decisions Could Lead to Cost Savings Governmentwide

Treasury: TARP in top ranks of crisis responses

WASHINGTON (MarketWatch) - The U.S. government's $700 billion bank bailout program will rank as one of the most effective crisis response programs ever implemented and the government's broader response efforts are remarkably low when compared to past systemic crises, a top Treasury official said Friday. "The cost of TARP is likely to be no greater than the amount spent on the program's housing initiatives-expenditures that were necessary to prevent even greater losses and hardships to American families and local communities and that were never intended to be returned," said Acting Assistant Treasury Secretary for the Office of Financial Stability Timothy Massad in testimony prepared for a watchdog group responsible for overseeing the Troubled Asset Relief Program. "The remainder of the programs under TARP-the investments in banks, AIG, credit markets, and the auto industry-likely will result in very little or no cost."

On June 17, 2009, the counsel for the United States sent a letter to Plaintiffs
Arman and Hutchens in their capacities as IMMI's sole stockholder, President,
Chairman, and Chief Executive Offcer (in Mr. Arman's case), and IMMI's Tenant in-Chief,
Warden of the Forest, and Warden of the Stannaries (in Mr. Hutchens' case). That letter notified
Plaintiffs Arman and Hutchens that IMMI had not complied with RCFC II(a) and 83.1 (a)(3) in
filing the Second Amended Complaint, and that the United States would move to strike the
Second Amended Complaint unless it received notice that IMMI would be either
(l) withdrawing as a plaintiff in this action, or (2) represented by properly admitted counseL.
Rather than respond directly to the undersigned counsel for the United States, on June 24, the
undersigned received from Plaintiffs Aran and Hutchens a copy of a petition submitted to this
Court asking it to permit IMMI to proceed without properly admitted counsel and to be instead
represented by Plaintiffs Hutchens and Arman. Plaintiffs' petition, a copy of which is attached
hereto as Exhibit A, does not appear to have been entered on the docket, perhaps because of this
Cour's May 27 Order prohibiting further fiings by Plaintiffs until the United States has
responded to the Second Amended Complaint. Even if it had been filed, however, Plaintiffs'
petition should be denied because, as the Federal Circuit has explained, the rule that corporations
must be represented by counsel in the Cour of Federal Claims (former RCFC 83.1 (c)(8) and
Fed. Cl. R. 81(d)(8)) "does not contemplate exceptions." Talasila, Inc. v. United States, 240
F.3d 1064, 1067 (Fed. Cir. 2001); see also Curtis v. United States, 63 Fed. Cl. 172, 179-80
(2004).

Plaintiffs' Second Amended Complaint Also Should Be Dismissed For Failure To
State A Claim Because It Alleges Unlawful Conduct By The United States.
Alternatively, Plaintiffs' Second Amended Complaint should be dismissed for failure to
state a claim upon which relief can be granted. "A motion to dismiss for failure to state a claim
is brought pursuant to RCFC 12(b)(6)." Abbey v. United States, 82 Fed. Cl. 722, 725 (2008).
As the United States Court of Appeals for the Federal Circuit has explained, "(t)he purpose of
(RCFC 12(b)(6)) is to allow the court to eliminate actions that are fatally flawed in their legal
premises and destined to faiL" Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc.,
988 F.2d 1157, 1160 (Fed. Cir. 1993).
His well established that "in a takings case (the court) assume(s) that the underlying
governental action was lawfL" Lion Raisins Inc. v. United States, 416 F.3cH356, 1370 (Fed.
Cir. 2005) (internal quotation marks omitted). "(T)o the extent that (a) plaintiff claims it is
entitled to prevail because the agency acted in violation of statute or regulation," Federal Circuit
precedent does "not give the plaintiff a right to litigate that issue in a takings action." Id. at
1369; see also NW Louisiana Fish & Game Preserve Comm'n v. United States, 79 Fed. Cl. 400,
406 (2007). Indeed, during the May 26 telephonic hearng, this Court explained at length the
difference between a claim for just compensation under the Fifth Amendment, which may be
brought in this Cour, and a challenge to the legality of governental action, which must be
brought in the appropriate district court.
Notwithstanding this Court's explanation and the well-established case law, Plaintiffs
continue to contest the legality of the EPA's actions at the Iron Mountain Mines Superfund site
Ïn this action. In their Second Amended Complaint, "Iron Mountain Mines, Inc. et al. dispute the
United States(') lawfl authority to conduct the() CERCLA remedial actions (removal)" about
which Plaintiffs complain, "and demand the return of the property and the restoration of rights,

privileges, and immunities of patent title to the possession and enjoyment of T.W. Aran and
John F. Hutchens." Dkt. 14 ~ 26. Plaintiffs goon to allege that they are entitled to just
compensation "(b )ecause the United States has no actual justification for its actions." Id.
Because Plaintiffs' Second Amended Complaint challenges the lawflness of the EPA's actions
at the Iron Mountain Mines Superfund site, it should be dismissed under RCFC 12(b)( 6) for
failure to state a claim upon which relief can be granted.
V. Conclusion
For the foregoing reasons, Defendant respectfully requests that this Court strike
Plaintiff s Second Amended Complaint from the docket and direct Plaintiffs to fie a new Second
Amended Complaint that either omits IMMI or includes the signature of an attorney appearing
on behalf ofIMMI. In the alternative, should the Court determine that Plaintiffs' Second
Amended Complaint was properly fied, Defendant respectfully requests that the Court dismiss
the Second Amended Complaint with prejudice.

Standing for Bringing RCRA Citizen Suit Determined at Time Case is Filed

In American International Specialty Lines Insurance Co. v. 7-Eleven , [1] the Northern District of Texas held that a showing of imminent and substantial endangerment to human health or the environment at the time litigation is commenced is sufficient to sustain a claim under the Resource Conservation and Recovery Act (“RCRA”). [2] 42 U.S.C. § 6972(a)(1)(B). Under the ruling, a defendant may not rely on subsequent clean up efforts as a means of avoiding suit.

Background

American International arose out of a dispute over environmental contamination at two former gas stations. American International Specialty Lines Insurance Company (“AISLIC”) insured the owners of a former Diamond Shamrock gas station located at 500 Boyd Road in Azle, Texas (the “500 Property”). The defendant, 7-Eleven, Inc. (“7-Eleven”), operated a gas station on adjacent property.

In 2004, AISLIC began remediation of the 500 Property under the direction of the Texas Commission on Environmental Quality (“TCEQ”). AISLIC's investigation revealed that some of the contamination at the 500 Property had migrated through the groundwater from 7-Eleven's parcel. [3] Armed with this information, AISLIC brought a RCRA claim against 7-Eleven, seeking injunctive relief to force 7-Eleven to remediate the contamination, as well as recovery of its attorneys' fees and costs. AISLIC also sought recovery of its response costs under the Texas Sold Waste Disposal Act (“TSWDA”). [4]

More than a year later, AISLIC moved for summary judgment on its RCRA claim. In response, 7-Eleven filed a cross-motion for summary judgment, disputing that an imminent and substantial endangerment continued to exist at the site. 7-Eleven pointed to a report from AISLIC's own consultant, Titan Engineering, which suggested that no imminent and substantial endangerment currently existed. The Titan report stated that any remaining contamination at the site would “not affect groundwater quality, would not likely pose a risk to human health, and would have little future impact on the immediate environment.” [5] Based on the report, TCEQ approved the cleanup process advocated by Titan in the report. Pointing to TCEQ's decision, 7-Eleven argued that that there was no imminent and substantial threat to human health or the environment at the 500 Property and that AISLIC's RCRA claim must therefore be dismissed based on the lack of a current imminent and substantial threat.

AISLIC responded that the site conditions which existed after it filed its lawsuit were irrelevant; maintaining that the court should look to the environmental conditions at the time the suit was filed to determine whether an imminent and substantial endangerment existed. AISLIC also argued that 7-Eleven should not benefit from remediation actions undertaken by AISLIC and that any improved site conditions at the 500 Property were due to its cleanup efforts, not those of 7-Eleven. AISLIC pointed to groundwater sampling showing benzene and MTBE [6] concentrations above state cleanup levels near the time it filed suit as support for its contention that an imminent and substantial endangerment existed at the time suit was filed. [7]

Analysis

RCRA's citizen-suit provision provides a mechanism for private enforcement and recovery of attorneys' fees to a prevailing party under the statute. [8] To prevail under § 6972(a)(1)(B), the plaintiff must show three things: (1) that the defendant is a “person” as defined by the statute; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste; and (3) that the waste poses an imminent and substantial endangerment to human health or the environment. [9]

In American International , the court held that AISLIC had satisfied the first and second elements, but that there was a genuine issue of material fact with respect to the existence of an imminent and substantial threat. 7-Eleven had admitted it owned and operated underground petroleum-storage tanks at the 7-Eleven Property [10] and 7-Eleven's releases of petroleum products contributed to the hazardous wastes found at both the 7-Eleven and 500 Properties. [11] As a result, the only remaining issue was whether an ongoing “imminent and substantial” threat was necessary in order for AISLIC to maintain its action, or whether it could rely on the existence of such a threat at the time it initiated the litigation.

In reviewing this question, the court noted that § 6972(a)(1)(B) provides for injunctive relief based on either past or present conduct. The court rejected 7-Eleven's argument regarding the lack of a continued presence of waste at the site, explaining that it considered the relevant inquiry to be “whether the condition at the 500 Property posed a substantial danger on May 12, 2008, when this suit was filed.” [12] The court disagreed with 7-Eleven's attempt to point to only the subsequent levels of contamination, stating, “Defendant misses the mark by citing almost exclusively to contamination levels in early 2009.” [13]

The court pointed out that contamination at the 500 Property exceeded the Texas state cleanup levels shortly before the suit was filed and that that petroleum soil contamination at 7-Eleven's Property might continue to impact the 500 Property by means of groundwater migration. From this evidence, the court concluded that “it appears that there were elevated levels of potentially hazardous contaminants at the 500 Property at the time of suit.” [14]

Notwithstanding these conclusions and its rejection of 7-Eleven's position, the court declined to grant summary judgment for AISLIC. The court held that issues of material fact precluded entry of summary judgment regarding whether contamination at the 500 Property actually constituted an imminent and substantial threat to human health and the environment at the time AISLIC filed suit. In reaching its decision, the court relied on precedent holding that contamination in excess of state limits was sufficient, by itself, to create a genuine issue of material fact as to the imminent threat element. [15]

Conclusion

Under American International , a defendant faced with a RCRA imminent and substantial endangerment citizen suit may not avoid liability by relying on environmental clean up undertaken after a plaintiff files the suit. The ruling may make it easier for plaintiffs to demonstrate an imminent and substantial endangerment at sites where clean up is ongoing.

For more information regarding American International , please contact Russell Prugh or any member of Marten Law's Waste Cleanup practice.

Federal Court Shifts $700 Million Cleanup Costs of Nation's Largest Superfund Site to NCR

SAN FRANCISCO --(BUSINESS WIRE)-- In a lawsuit involving the nation's largest Superfund site, a federal court in Green Bay, Wisconsin on Monday granted a motion for summary judgment filed by Menasha Corporation and other defendants. The ruling shifts responsibility for an estimated $700 million in cleanup costs for polychlorinated biphenyls (PCBs) contaminating Lower Fox River and Green Bay to NCR Corp. and related entities under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).

“We are pleased that the court holds responsible those who actually contaminated the river with PCBs, rather than forcing paper recyclers like Menasha Corporation to pay hundreds of millions of dollars in cleanup costs,” said Menasha's attorney, Philip Hunsucker of Hunsucker Goodstein & Nelson PC . “The court's decision is the next logical step toward a final resolution of the parties' liability for this massive Superfund site.”

NCR manufactured carbonless copy paper at the site using PCBs from the 1950s to the 1970s. The lawsuit, NCR Corp. v. George A. Whiting Paper Company , was filed in 2008. In December 2009 , the court held NCR could not recover from the defendants on its contribution claims. Monday's decision grants summary judgment on Menasha Corporation's claim for declaratory relief.

The court held that NCR and others, “…were responsible for creating the hazardous condition; they knew there was a risk of environmental damage; and they profited from the very condition (PCBs) that made their product hazardous, in contrast to the defendants, whose discharges of PCBs were almost entirely unknowing and whose profits in no way turned on the presence of PCBs in the broke they processed.”

As a result, the court ordered NCR and related entities to reimburse Menasha and other defendants for all environmental response costs the government requires them to pay to clean up PCB contamination in the Lower Fox River downstream of Little Lake Butte des Morts.

The court did not resolve whether NCR must reimburse the defendants for costs they incurred to remediate PCB contamination in Little Lake Butte des Morts. Also unaffected are claims brought by the United States and State of Wisconsin .

Philip Hunsucker and David Rabbino of Hunsucker Goodstein & Nelson PC represented Menasha Corporation in the lawsuit. The law firm, which has offices in California , Indiana and Washington DC , focuses on environmental litigation, insurance coverage/bad faith, and investor securities disputes.

Wildlife

An amendment to the Continuing Resolution offered by Rep. Lummis (R- WY), and passed 232- 197 , could make it harder to sue the government to enforce laws like the Endangered Species Act. The amendment would block the government from paying the legal fees of individuals or citizen groups that successfully sue it. Since the amendment does not change the underlying law, it basically would require the government to default on its obligation to pay the fees. In addition, a rider to the bill would overturn a court decision that protects endangered wolves in the northern Rockies.

Water

The Continuing Resolution includes a provision that would block the EPA from clarifying what U.S. waters are covered by the protections in the Clean Water Act in the wake of two court decisions. It also includes a rider to block implementation of Endangered Species Act protections in two critical California watersheds, the San Francisco Bay-Delta ecosystem and the San Joaquin River. Several other approved amendments also would further prevent the EPA from protecting waters from pollution:

Lands

The Continuing Resolution would eliminate 90 percent of the budget for the Land and Water Conservation Fund, which is financed with royalties from oil drilling on federal lands, and used by the federal government and the states to acquire lands for conservation and recreation. The bill also would reduce enrollment in the Wetland Reserve Program by 50,000 acres. This program allows farmers and landowners the opportunity to restore, maintain and protect wetlands on their property, leading to improved habitat for wildlife. The bill also contains a rider that would block the Department of Interior from taking steps to protect areas with wilderness characteristics.

On 2/19, the House or Representatives passed a Continuing Resolution ( H.R. 1 ) to keep the government funded through the remainder of this fiscal year, which ends 9/30. The bill would make deep cuts in environmental programs, targets climate-related programs and includes numerous legislative provisions to block the Environmental Protection Agency from issuing regulations to protect health and the environment. The bill passed 235-189, with all Democrats opposing the measure, and all Republicans supporting it except for three conservatives. President Obama has said he will veto the bill if it reaches his desk. The Senate plans to work this week on a bill without legislative provisions to keep the government open for another month to allow time for negotiations on a longer-term measure. (The current Continuing Resolution expires on 3/4.) Some of the key environmental provisions of the House-passed bill are described below.

Budget

The bill would cut the Environmental Protection Agency budget by about 30 percent from fiscal 2010 levels. Since the current fiscal year is almost half over, that represents a cut of almost 60 percent for spending in the remainder of fiscal 2011. The deepest cuts -- about $2 billion -- would be to the funds that provide money to states and localities to build and repair sewage and drinking water systems. The bill also would cut by 50 percent funding for the restoration of "America's Great Waters" such as the Chesapeake Bay, Puget Sound, Long Island Sound, the Great Lakes and Lake Champlain.

The bill also would cut by almost a quarter the budgets of a number of Department of Energy programs that promote clean energy. The bill would reduce funding for the DOE Energy Efficiency and Renewable Energy Program (- $775M), the DOE Office of Science (- $886M), the DOE Loan Guarantee Program (-$25B for all technologies except for "nuclear power facilities and front-end nuclear facilities") and the Energy Star program (-$10M). Additionally, the bill would rescind all funds provided to the programs by the American Recovery and Reinvestment Act of 2009.

The bill also would remove all funding for high-speed rail and Federal Highway Administration surface transportation priorities. The bill would cut Amtrak's budget by $151 million.

Air & Climate

The bill contains many riders -- legislative provisions that would not change the amount of spending in the bill, but carve out exceptions to current law. One rider would block the EPA from issuing or implementing any limits on emissions of carbon dioxide or other greenhouse gases from power plants or factories. An even broader provision, blocking the EPA from limiting emissions of greenhouse gases from any source for any reason -- including limiting damage to the ozone layer -- was offered by Rep. Poe (R-TX) , and approved by a vote of 249-177. Other air- and climate-related riders include:

CONTACT:
Richard Yost
yost.richard@epa.gov
202-564-7827
202-564-4355

FOR IMMEDIATE RELEASE
March 3, 2011

EPA Submits for Public Comment the Next Round of Safe Drinking Water Act Contaminant Monitoring

WASHINGTON – As part of its commitment to implement sensible protections of drinking water for communities across the country, and as required by the Safe Drinking Water Act, the U.S. Environmental Protection Agency (EPA) is proposing 30 currently unregulated contaminants for monitoring in water systems, and submitting this proposal for public comment. The comment period will allow the public and other stakeholders to provide input on the selection of new contaminants for monitoring , and will help determine the best path forward as the EPA seeks to collect data that will inform future decisions about how best to protect drinking water.

“Ensuring clean and safe drinking water for all Americans is a top priority for EPA,” said Nancy Stoner, acting assistant administrator for EPA's Office of Water. “In keeping with the Safe Drinking Water Act, we are submitting for public comment and input our proposed next round of currently unregulated contaminants for monitoring. Learning more about the prevalence of these contaminants will allow EPA to better protect people's health.”

Under the authority of the Safe Drinking Water Act, EPA currently regulates more than 90 contaminants in drinking water. To keep drinking water standards up-to-date with emerging science, the Safe Drinking Water Act requires that EPA identify up to 30 unregulated contaminants for monitoring every five years. This current proposal is the third Unregulated Contaminant Monitoring Regulation and includes requirements to monitor for two viruses and 28 chemical contaminants that could be present in drinking water and do not currently have health-based standards.

EPA is requesting public comment on the proposed list of 30 contaminants until May 2, 2011. Following the public comment period, EPA will consider this important input before the list is scheduled to be finalized in 2012, with sampling to be conducted from 2013 to 2015. Sampling will take place at all systems serving more than 10,000 people and at a representative sampling of systems serving less than 10,000 people.

More information about the proposed list of contaminants:
http://water.epa.gov/lawsregs/rulesregs/sdwa/ucmr/ucmr3/index.cfm .

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IN THIS ISSUE:
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This Month in EPA@40
About This Newsletter

Protect children from accidental poisoning by household substances. Lock up household pesticides and chemicals in a high cabinet out of the reach of children. March 20-26 is National Poison Prevention Week.
http://www.epa.gov/pesticides/health/poisonprevention.htm

Reviewing Regulations. EPA is inviting the public to provide input to our retrospective review of regulations. You can comment regarding the design of the plan, and EPA will also provide opportunities for input through a public meetings:
-in Washington, D.C. on March 14;
-at listening sessions in other parts of the country TBD.
http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2011-2-18_Regulation_review

Go Greenscaping! Despite a very snowy winter, March is when we typically begin to think of yards and lawns and being outdoors again. Start with ideas and useful tips for greenscaping - environmentally friendly practices to improve the health and appearance of your lawn and garden.
http://www.epa.gov/epawaste/conserve/rrr/greenscapes/owners.htm

It's My Environment! video. Submit your IME video - a short clip of someone doing something for the environment, then reading and passing along a sign that says "It's My Environment." Read more about how to prepare the video and send us yours today!
http://www.epa.gov/earthday/video/

Women in Science. Join us during March as we observe women scientists and engineers who are devoting their careers to help the Agency meet its mission to protect human health and the environment. You can share in the discussion on daily blog posts, some with companion video interviews of EPA officials or staff scientists. March is Women's History Month.
http://www.epa.gov/womeninscience
-Read EPA Administrator Lisa P. Jacksons's kick-off blog post:
http://blog.epa.gov/blog/2011/03/01/women-in-science-administrator-lisa-p-jackson/

Fix a Leak! Being handy around the house doesn't have to be difficult. Leaky toilet flappers, faucets, and other valves waste millions of gallons of water but are easy to fix.
March 14-20 is "Fix a Leak" week.
http://www.epa.gov/watersense/water_efficiency/fix_a_leak.html

Groundwater awareness. More than 90 percent of all U.S. public drinking water systems use ground water. Learn more about your drinking water and what you can do to help protect your community's ground water.
National Groundwater Awareness Week is March 6-12.
http://water.epa.gov/type/groundwater/awarenessweek.cfm

Delaware River Basin Forum. On March 10, you can participate in a free one-day, basin-wide event about water resource sustainability for the more than 15 million people who rely on the waters of the Delaware River. Open to anyone in the Delaware Basin or interested in river issues where you live - you can participate in the forum in person or online. For more information about the forum and how to register:
http://www.delawarebasindrinkingwater.org/ Exit EPA Disclaimer

Week
National Groundwater Awareness Week, 6-12
Fix-a-Leak Week, 14-20
National Poison Prevention Week, 20-26

Welcome to ARPA-e

Let me first thank you for your interest in ARPA-E. I want to use this opportunity to explain and elaborate on ARPA-E's vision and report on where we are now.

We are living in challenging times, but are surrounded by opportunities. The widespread use of fossil fuels has long driven the engine of economic growth, and yet our dependence on these fuels severely threatens our national and environmental security due to our growing foreign energy dependence as well as climate change. Business as usual is not an option, as the outcome will be devastating. This is true not only for the US, but also for all nations in this interconnected world. The nation that successfully grows its economy with more efficient energy use, a clean domestic energy supply, and a smart energy infrastructure will lead the global economy of the 21st century. In many cases, we are lagging behind. We as a nation need to change course with fierce urgency.

Let us try to comprehend the scale of this challenge with the following question: What were those innovations of the 20th century that changed the course of humankind's history? Perhaps the most important one was the Haber-Bosch process of creating artificial fertilizers by fixing atmospheric nitrogen to form ammonia. It touched humanity like none other because it led to massive increase in food production and an almost four-fold increase in global population in 100 years. But there were plenty of other game-changers: creating semi-dwarf, high-yield strains of wheat that introduced the green revolution; antibiotics; polio vaccination; the transistor and integrated circuits; electrification; the airplane; nuclear energy; optical and wireless communication; the internet; and so on. Now imagine all of these innovations happening in a span of just 10-20 years: That is the scale and pace of game-changing innovations that we now need to address the energy and climate change challenge of our and future generations.

ARPA-E was created to be a catalyst for such a transformation, and to do so with fierce urgency. Our nation's history is replete with examples of pioneers and entrepreneurs who took risks. These innovators often failed initially, but quickly learned from those failures, competed against each other, and innovated in both technology and business to create the largest industrial base the world has ever seen. ARPA-E's goal is to tap into this truly American ethos, and to identify and support the pioneers of the future. With the best R&D infrastructure in the world, a thriving innovation ecosystem in business and entrepreneurship, and a generation of youth that is willing to engage with fearless intensity, we have all the ingredients necessary for future success. The goal of ARPA-E is to harness them and make a full-court press to address our technological gaps and leapfrog over current approaches. In this respect, ARPA-E has made a great start and it is worth reflecting on its 8 months of incubation and delivery.

The first Funding Opportunity Announcement (FOA) was made in May 2009, and it received an unprecedented response from the R&D community: 3,700 concept papers, 334 full proposals, and eventually 37 selected for funding. All this happened in a span of 6 months. We are now in the process of finalizing the award agreements, and we plan to award 80 percent of them by the end of 2009. This is a record setting pace and is being done by an immensely dedicated staff.

As the numbers suggest, only one percent of proposals were selected for funding. By all measures, this is very low. To some extent, this depended on the level of funding. ARPA-E could have easily broken it down into small funding levels and made many more awards. But the decision was made – and I concur - that ARPA-E ought to be selective and fund the most game-changing ideas with significant levels of financial support that will enable the recipients to accelerate technical progress so that after the projects are completed, the technologies are ready to be adopted by the other stakeholders.

I am quite sure that there were many excellent proposals that were not funded. We urge you to return to ARPA-E with your ideas for future workshops and to help us create new programs. We also plan to organize an annual event where we not only want to highlight the technologies that we support, but also invite teams that did not get funded, so that we can connect them to other offices within DOE as well as other funding agencies and organizations. In short, we know that we cannot financially support everyone, but we also realize that we need to build a large community beyond ARPA-E for our nation to change course with fierce urgency.

If we are to foster rapid technological innovations, we also need to innovate in creating a system and a process that enables them to thrive. We are now creating that “DNA” of ARPA-E. First and foremost, we are recruiting a team of some of the best and brightest program directors who have one foot in science, with the other in technology and business, and who are willing to serve the nation at this critical juncture in our history. These will be term appointments for three - four years. In addition, we are also forming a technology outreach team, whose responsibility will be to identify pathways for ARPA-E funded technologies to create business opportunities and be adopted in the market, and explain to the public and all stakeholders how these innovations could be beneficial to society. Finally, we have an operations team that is streamlining the transactions and interactions between ARPA-E and the awardees. The value of an ARPA-E award will be much more than just money. Awardees will have the opportunity to draw on the expertise of three ARPA-E teams: technical program, technology outreach, and operations.

It is very important that we get our DNA right, especially in these early stages. I thank you for taking interest in and working with ARPA-E. I would be delighted to receive feedback from you about how we are doing, and how we could serve you better.

We are now launching our second round of FOAs for a total of $100M. In contrast to the first FOA, which was open to all topics related to energy, these FOAs are more focused. The topics resulted from several workshops that we had over the last three months, where we received input from the technical community. A few of the workshop participants included those who did not get funded in the first round, but who returned to educate ARPA-E about specific technical barriers and potential game changing ideas. We urge you to continue informing and educating us through such forums, and also through one-on-one interactions with the program directors. In short, ARPA-E is looking for the best ideas and we are coming to the table with an open mind.

Shasta County jobless rate slows; unemployed figures rise to 16.8 percent

United States: Possible Funding Opportunities Related To Tribal Energy Development

The U.S. Environmental Protection Agency (EPA), the U.S. Department of Commerce (DOC), the Department of Housing and Urban Development (HUD), and the Department of Transportation (DOT) have announced more than $228 million in funding opportunities for state, local, and tribal governments. Some of these grants can be used to support energy related initiatives. Specific opportunities are listed on the TEEIC Web site at http://teeic.anl.gov/news/ .

In addition, the U.S. Department of Energy (DOE), Tribal Energy Program, periodically distributes information about possible funding opportunities related to energy development, some of which are specific to tribes. These announcements are compiled by Laurie Brown at the Washington State University Extension Energy Program. See http://teeic.anl.gov/news/ for the latest announcement of the Funding Opportunities.

The TEEIC Web site (http://teeic.anl.gov) provides information about the environmental effects of energy development on tribal lands.

The site includes information about energy resource development and associated environmental impacts and mitigation measures; guidance for conducting site-specific environmental assessments and developing monitoring programs; information about applicable federal laws and regulations; and federal and tribal points of contact.

The U.S. Department of the Interior is funding the development of the TEEIC through the Assistant Secretary of Indian Affairs' Office of Indian Energy and Economic Development.

February 28, 2011 - The Department of Fish and Game (DFG) has completed the first round of environmental review documents related to California's currently suspended Suction Dredge Permitting Program. The Draft Subsequent Environmental Impact Report (SEIR) is now available for public review and comment.

The Draft SEIR addresses the potential environmental effects of the permitting program, which was suspended in 2009 pending completion of this review, and proposes amendments to the regulations that existed prior to the current moratorium.

In addition to proposing the revised program, the document also evaluates the potential impacts of four alternatives: a No Program Alternative (continuation of the existing moratorium), a 1994 Regulations Alternative (continuation of previous regulations in effect prior to the 2008 moratorium), a Water Quality Alternative (which would include additional program restrictions for water bodies listed as impaired for sediment and mercury pursuant to the Clean Water Act, section 303(d)), and a Reduced Intensity Alternative (which would include greater restrictions on permit issuance and methods of operation to reduce the intensity of environmental effects).

The Draft SEIR and supporting documents are now available on the DFG website at www.dfg.ca.gov/suctiondredge, and can be provided upon request by calling (530) 225-2275. Copies of the Draft SEIR are also available for review at DFG regional offices including:

Region 1 601 Locust St., Redding
Region 2 1701 Nimbus Road, Suite A, Rancho Cordova
Region 3 7329 Silverado Trail, Napa
Region 4 1234 E. Shaw Ave., Fresno
Region 5 4949 Viewridge Ave., San Diego
Region 6 3602 Inland Empire Blvd., Suite C-220, Ontario
Region 6 4665 Lampson Avenue, Suite J, Los Alamitos (second location)
Region 7 20 Lower Ragsdale Drive, Suite 100, Monterey
HQ 1807 13th St., Suite 104, Sacramento

Five public meetings will be held in late March. All interested persons are encouraged to attend to present written and/or verbal comments. The meetings will be held at the following locations and times:

Santa Clarita:
Wednesday, March 23 at 5 p.m.
Residence Inn by Marriott
25320 The Old Road
Santa Clarita, CA 91381

Fresno:
Thursday, March 24 at 5 p.m.
California Retired Teachers Association
3930 East Saginaw Way
Fresno, CA 93726

Sacramento:
Tuesday, March 29 at 5 p.m.
Cal EPA Headquarters Building
Byron Sher Auditorium
1001 I St.
Sacramento

Yreka:
Wednesday, March 30 at 5 p.m.
Yreka Community Center
810 N. Oregon St.
Yreka, CA 96097

Redding:
Thursday, March 31 at 5 p.m.
Shasta Senior Nutrition Program
100 Mercy Oaks Drive
Redding, CA 96003

Written comments will also be accepted from Feb. 28 through April 29, 2011 at 5 p.m. Comments may be submitted by e-mail to dfgsuctiondredge@dfg.ca.gov or by regular mail to:

Mark Stopher
California Department of Fish and Game
601 Locust St.
Redding, CA 96001

Comments received by the due date will be included in the final SEIR that will be prepared for the California Fish and Game Commission.

For more information about the public meetings or the suction dredge program, please visit www.dfg.ca.gov/suctiondredge/ . If you require reasonable accommodation to attend a meeting or require this notice or the Draft SEIR in an alternate format, please contact the Suction Dredge Program at (530) 225-2275, or the California Relay (Telephone) Service for the deaf or hearing-impaired from TDD phones at 1-800-735-2929 or 711.

House Appropriations Committee Chairman Hal Rodgers (R-Ky.) has introduced a continuing resolution that would cut $100 billion from government operations through Sept. 30. Tea Party activists, who have very astutely maintained pressure on the GOP majority, have good reason to be pleased. The legislation cuts the EPA's budget by $3 billion, which is nearly 30 percent the 2010 level of $10.3 billion. It would also withhold funding for any current and future EPA greenhouse gas regulations on stationary sources. That's a nice step forward for the cause of limited government.

House Republicans have also proposed cuts to the EPA aimed its Global Change Program, which measures the potential fallout from climate change. The bill would chop $7 million from the $21 million the program received in 2010. The EPA's Energy Star program would be also be reduced by about $10 million from where it was in 2010.

President Obama has said he will veto any legislation that strips EPA of its authority to regulate greenhouse gases. But the Republicans are pressing ahead. Most recently, Rep. Tim Walberg (R-Mich.) introduced a version of Sen. John Barrasso's (R-WY) bill to pre-empt permanently all regulation of greenhouse gas emissions using any existing legal authority. Walberg's bill, H.R. 750, has been referred to the Energy and Commerce Committee. Over on the Senate side, Barrasso's S. 228 has 16 co-sponsors.

112TH CONGRESS
1ST SESSION S. 299
To amend chapter 8 of title 5, United States Code, to provide that major
rules of the executive branch shall have no force or effect unless a
joint resolution of approval is enacted into law.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 7, 2011
Mr. PAUL (for himself, Mr. DEMINT, Mr. ENSIGN, Mr. GRASSLEY, Mr.
COBURN, Mr. BLUNT, Mr. THUNE, Mr. ENZI, Mr. CORNYN, Mr. HATCH,
Mr. CHAMBLISS, Mr. JOHNSON of Wisconsin, Mr. ISAKSON, Mr.
BARRASSO, Mr. WICKER, Ms. AYOTTE, Mr. SESSIONS, Mr. PORTMAN,
Mr. JOHANNS, Mr. BOOZMAN, Mr. VITTER, Mr. LEE, Mr. INHOFE, Mrs.
HUTCHISON, and Mr. RUBIO) introduced the following bill; which was
read twice and referred to the Committee on Homeland Security and
Governmental Affairs
A BILL
To amend chapter 8 of title 5, United States Code, to provide
that major rules of the executive branch shall have no
force or effect unless a joint resolution of approval is
enacted into law.

John Locke , an English philosopher admired by Jefferson and many other Founders, succinctly explained what later came to be called the non-delegation doctrine :

The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it on to others.

That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of a system of government ordained by the Constitution.

Battle Creek's revival is cause

And it's hard not to run the numbers and figure that the restored spawning runs on Battle Creek, which scientists estimate will produce just under 10,000 fish a year, will be extraordinarily expensive — more than 8,000 bucks per expected new salmon and steelhead. (Not counting $360 million at Iron Mountain Mine?)

The Endangered Species Act can put up costly hurdles in front of development or even, these days, basic activities like irrigating a crop.

Environment - USA

Vapour intrusion pathway may be added to Superfund ranking system

For more than two decades, the Environmental Protection Agency (EPA) has considered four exposure pathways in determining whether to list contaminated sites on the Superfund National Priorities List: groundwater, surface water, soil and air. In a Federal Register notice published on January 31 2011, the EPA solicited public comment on the potential addition of a fifth pathway: soil vapour intrusion.

The migration of vapours from sub-surface contamination into overlying buildings, known as vapour intrusion, is a growing concern for federal and state environmental regulators. Vapour intrusion is most common at sites with elevated levels of volatile organic compounds – including chlorinated solvents and sometimes gasoline – which enter indoor air through openings around sewer lines, cracks in a building's foundation or basement, or other preferential pathways.

Under the federal Superfund law, the EPA screens contaminated sites for listing on the National Priorities List through its Hazard Ranking System, assigning each site a score based on its perceived threat to human health and the environment. The risk of vapour intrusion, however, does not currently factor into this determination. A May 2010 Government Accountability Office report found that, given the EPA's inability to designate National Priorities List sites on the basis of vapour intrusion, "[s]tates may be left to remediate those sites without federal assistance, and given states' constrained budgets, some states may not have the ability to clean up these sites on their own".

Until April 16 2011, the EPA will now be collecting public comment on the potential revision of the Hazard Ranking System to account for vapour intrusion. It plans to hold three public listening sessions on the topic. While it has not proposed specific regulatory changes at this point, the EPA "will consider the information gathered from this Notice, listening sessions, and other sources before making a decision to issue a proposed rulemaking to add subsurface contaminant intrusion" to the Hazard Ranking System.

The EPA is also in the process of revising its draft guidance for the evaluation of vapour intrusion risks, which was initially released in 2002 but has yet to be finalised. The EPA outlined a number of likely changes to that document last October and plans to issue updated guidance by November 2012.

Finally, the New York State Department of Environmental Conservation is continuing to re-evaluate vapour intrusion pathways and has reopened several sites that had already been remediated and delisted to require additional monitoring or mitigation measures.

For further information on this topic please contact Christine Leas , Jeffrey Gracer or Michael Bogin at Sive Paget & Riesel PC by telephone (+1 212 421 2150), fax (+1 212 421 2035) or email ( cleas@sprlaw.com , jgracer@sprlaw.com or mbogin@sprlaw.com ).

Briefly describe the procedural history, the result below, and the main issues on appeal.
Describe any proceedings remaining below or any related proceedings in other tribunals.
(Please continue to next page.)
Procedural History:
Plaintiffs US and State of California moved for partial summary judgment on the issue of liability, contending that
Defendants were jointly and severally liable for defense costs. Defendants opposed the motion.
2002: Partial Summary Judgment in favor of plaintiffs - the court denied what was termed the Defendants
"divisibility of harm" defense, saying that "distinct harms" would be difficult to identify.
12/18/2009: Defendants filed a Motion to reconsider, based on the Supreme Court's decision in Northern and Santa
Fe Ry. Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern")
5/2/2010: The court denied Defendants motion for reconsideration.
Result: On December 16, 2010, Final Judgment was entered in favor of Plaintiffs.
Main Issue on Appeal:
whether the district court erred in rejecting defendants' divisibility of harm defense (see Northern and Santa Fe Ry.
Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern") and further erred in rejecting
defendants' set off defense based on plaintiffs' $800 Million settlement with Rhone-Poulenc in December 2000.
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."

Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."

Full docket text for document 13:
ORDER denying [7] Motion for Preliminary Injunction Plaintiff shall file a Second Amended Complaint by 6/15/2009. Defendant shall file its Answer by 7/6/2009.[THE COURT SHALL ACCEPT FOR FILING NO PLEADINGS OTHER THAN WHAT IS DIRECTED IN PARAGRAPH 3] Signed by Judge Christine O.C. Miller. (bre, )

Full docket text for document 24:
ORDER 1. The Clerk of the Court shall accept no other filings of any type from plaintiffs until the court has resolved defendant's pending Motion to Strike. 2. The time which defendant shall respond to plaintiffs' "Motion for a Name Clearing Hearing is STAYED pending further order of the court. Signed by Judge Christine O.C. Miller. (bre, )

Full docket text for document 26:
ORDER RETURNING UNFILED: Ex Parte : Officer's Oath by Clerk's Notice Adverse Claims, and Application for Ex Parte Writ of Possession Executed Under Oath received 9/11/2009. Signed by Judge Christine O.C. Miller. (bre, )

Full docket text for document 27:
PUBLISHED OPINION denying plaintiffs' motion filed August 31, 2009, granting defendant's [15] Motion to Strike insofar as plaintiff Iron Mountain Mines, Inc. is stricken from the second amended complaint, and the Clerk is directed to dismiss the second amended complaint including plaintiffs'August 20, 2009 "petition" without prejudice for lack of subject matter jurisdiction. Signed by Judge Christine O.C. Miller. (lld)

1:09-cv-00207-CCM HUTCHENS et al v. USA
Christine O.C. Miller, presiding
Date filed: 04/06/2009
Date terminated: 10/13/2009
Date of last filing: 10/13/2009

History

Restoration Plan Proposal for Modifications to Remedial Design and Remedial Action

U.S. District Court for the Eastern District of California, U.S. Environmental Protection Agency, National Marine Fisheries Service of the National Oceanic and Atmospheric Administration, U.S. Bureau of Reclamation, U.S. Bureau of Land Management,

State of California, California Environmental Protection Agency, California Department of Toxic Substances Control, California Hazardous Substances Account, California Hazardous Substances Cleanup Fund, California Toxic Substances Control Account, Regional Water Quality Control Board for the Central Valley Region, California State Water Resources Control Board, California Department of Fish and Game, California state Lands Commission, IT, ITX, IT Iron Mountain Operations LLC, IT Administrative Services LLC, Trust I, Trust II, the Trustee, AISLIC, and any and all successors, and the Oversight Agency, and the Ecosystem Restoration Program.

Jim Bybee, Supervisor, Habitat Conservation Division, National Marine Fisheries Service, NOAA, Santa Rosa , CA

85. The United States and the State agencies acknowledge and agree, and by entering this Consent Decree this Court finds, that the payments to be made by the Settling Parties pursuant to this Consent Decree represent a good faith settlement and compromise of disputed claims, that the Work to be performed under this Consent Decree and the SOW by the Site Operator represents a valuable benefit to the United States and the State agencies, and that the settlement represents a fair, reasonable, and equitable resolution of the matters addressed in this Consent Decree. The Parties further agree, and by entering this Consent Decree this Court finds, that the Released Parties, the Site Operator, the IT Parties, Trust I, Trust II, and the Trustee are entitled, as of the Effective Date of this Consent Decree, to protection from costs, damages, actions, or other claims (whether seeking contribution, indemnification, or however denominated) for matters addressed in this Consent Decree, as provided by (1) CERCLA Section 113(f)(2), 42 U.S.C.§ 9613 (f)(2), and (2) all other applicable provisions of federal or state statutes or of common law that may limit or extinguish their potential liability to persons not a party to this Consent Decree, including without limitations Sections 877 and 877.6 of the California Code of Civil Procedure.

42 U.S.C.§§ 6901: (a)4: that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices. ; (b)6: if hazardous waste management is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming; (c)1,2,3;(d)1: millions of tons of recoverable material which could be used are needlessly buried each year ; 2: methods are available to separate usable materials from solid waste; 3: the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. ; 6907(g), 6913: The Administrator shall provide teams of personnel, including Federal, State, and local employees or contractors (hereinafter referred to as “Resource Conservation and Recovery Panels”) to provide Federal agencies, States and local governments upon request with technical assistance on solid waste management, resource recovery, and resource conservation. Such teams shall include technical, marketing, financial, and institutional specialists, and the services of such teams shall be provided without charge to States or local governments.

And Claims Pursuant to paragraph 71, 77(c), 103, 107(d) and 109 and according to the Final Judgment (119) of the Consent Decree of Dec. 8, 2000

In 1872, Congress enacted the General Mining Law, allowing miners to enter onto federal land, locate valuable mineral deposits, and develop those minerals. Once a miner's claim was staked, it was inviolate against all other claims, except those asserted by the federal government itself, which could challenge the validity of a miner's claim at any time.

Miners were required to perform annual assessment work, or else the land was open to relocation by rival claimants as if no prior claim existed. If the original claimant resumed work before such relocation, the claim was preserved. Often called the “resumption doctrine,” this is the “statutory right to resume work.”

Several investigations and regulatory actions at Iron Mountain have been initiated by California State agencies over the last few decades. These are too lengthy to summarize here. Since the original listing of Iron Mountain on the National Priorities List in 1983, the EPA has authorized four Records of Decision (RODs) and has considered numerous options for remediation. A condensed version of the main remedial alternatives is as follows:

The EPA and the potentially responsible parties remain in legal contention over the appropriate final remediation approaches to be used at Iron Mountain Mine and the costs. Both the U.S. Government and the potentially responsible parties have funded a considerable number of investigations, remediation efforts, legal fees, and oversight management. The loads of copper, zinc, and cadmium into the Sacramento River have been reduced by 80-90%, and further remediation is in progress or being planned. The main challenge that remains is how to find a permanent (and passive) treatment solution in light of the fact that the mine drainage will continue for approximately 3,000 years unless the sulfide ore is mined out.

The remedial action undertaken at Iron Mountain Mine has effectively reduced the Acid Mine Discharge into the Sacramento River as required by the Record of Decision and Consent Decree. However, the method used, (lime neutralization), has resulted in the accumulation of some 400,000 tons of solid waste. The present on-site storage facility will be filled in another 20 years, and the proposed expansion of that site according to the current Scope of Work will be exhausted within 50 years after that. By that time the current process will have created an equivalent volume of sludge to the Great Pyramid of Egypt, and since the anticipated need for mitigation of the Acid Mine Drainage is expected to continue for another 3,000 years, clearly a better solution is needed.

The Proposed Remedial Project Manager hereby proposes to implement modifications to the existing Scope of Work to abate the accumulation of solid waste and improve upon the current mitigation of water pollution (presently about 90%) according to the following general plan.

• Pre-treat the AMD at the mine portal discharge and in transport to the holding tanks with a hydrogen sulphide/ carbonation / melamine/ tmt / ammonia treatment to raise the ph to about 4, with an initial precipitation of much of the tri-valent iron, cadmium, lead, copper, zinc, and other metals, followed by filtering through porous iron to remove any latent arsenic.

• Divert a portion of the pre-processed AMD for a coal/ humic acid processing facility, which humic acids will be processed with urea and ammonia, to chelate a significant portion of the remaining metals in solution for use in agricultural fertilizers.

• Divert a portion of the pre-processed AMD for a coal gasification plant, which plant will supply ammonia and related products and hydrocarbons, and provide power for the facility.

• Divert a portion of the pre-processed AMD to a processing facility to recover and recycle the high density sludge (HDS) that has been disposed upon the property. This re-processing of the HDS will separate the suspended minerals for processing and marketing, manufacture ammonia sulphate for fertilizer marketing, produce precipitated calcium carbonate for processing and marketing, and produce enough lime, (calcium hydroxide), of very high purity for reuse in the lime neutralization plant, thereby reducing or eliminating the need to bring additional lime to the site.

Comprehensive site improvements, public facilities, landscaping, trails, resort, chalets, restaurants, shops, and monument.

ESTIMATE OF LONGEVITY OF POLLUTION FROM THE RICHMOND MINE AT IRON MOUNTAIN , CALIFORNIA

Environment and Sustainability, Newcastle University, 3rd Floor Devonshire Building, Devonshire Terrace, Newcastle Upon Tyne, NE1 7RU, United Kingdom, natalie.kruse@ncl.ac.uk

KRUSE, Natalie A.S. and YOUNGER, Paul L., Instit Environment and Sustainability, Newcastle University, 3rd Floor Devonshire Building, Devonshire Terrace, Newcastle Upon Tyne, NE1 7RU, United Kingdom, natalie.kruse@ncl.ac.uk.

The Pollutant Loadings Above average Pyrite Influenced Geochemistry Pollutant Sources and Sinks in Underground Mines (PLAYING POSSUM) model, developed at Newcastle University utilizes object-oriented programming techniques and geochemical algorithms to simulate hydro-geochemical changes in mine water. PLAYING POSSUM may be applied to abandoned coal and metal mines in order to confirm the governing geochemical processes in the system and to predict the longevity of polluting drainages. The model solves for hydro-geochemical changes based on mineral weathering of a suite of 28 minerals, mineral precipitation, reversible sorption, dissolution and precipitation of acid generating salts and addition of pollutants from dispersed inflows. PLAYING POSSUM has been used to simulate the discharge from Richmond Mine at Iron Mountain , Shasta County , California , in an attempt create a process-based estimate of the longevity of the polluting drainage. In contrast to the U.S. Geological Survey steady-state estimate of 3200 years until the ore body is exhausted, the simulation solution created by PLAYING POSSUM estimates that the mine water chemistry will decrease to asymptotic levels after approximately 3500 years. Although these results seem compatible, the asymptotic pollution levels are only approximately 10% of the initial levels and, therefore, the discharge is still highly polluting. During the 5000 year simulation period, only 40% of the remaining ore body weathers. The estimate of pollution longevity produced by PLAYING POSSUM shows the need for non steady-state estimates based on geochemical controls acting in abandoned mine systems.

This scoping document has been prepared for Iron Mountain Mines, Inc. and for the Iron Mountain Mine Remediation Project which entails development of the Iron Mountain ore bodies of the existing Iron Mountain Mine in northwestern California . Scoping is one of the first steps in the National Environmental Policy Act (NEPA) process. Scoping serves to inform interested parties about the proposed project, issues,

and alternatives, and to seek input on the project and issues of concern. This input will be used

in developing a Supplemental Environmental Impact Statement (SEIS) for the Iron Mountain Mine

Remediation Project. This scoping document provides a description of the existing Iron Mountain

Mine and proposed Iron Mountain Project, lists significant issues, and identifies how and by when

The Iron Mountain Mine is located in northwestern California , approximately 9 miles north of

Redding. The mine is on private land owned by Iron Mountain Mines, Inc. The previous removal actions are operated by AIG Consultants under a insurance policy issued pursuant to a partial settlement and Consent Decree between the responsible parties and the EPA and DOJ of Dec, 2000.

The proposed Iron Mountain Project encompasses the activities required for Iron Mountain mine to develop the Iron Mountain Deposits and reclaim the site with a hydropower pump storage project.

The Iron Mountain Mine consists of an open pit zinc-sulfur mine, mill sites for processing ore, tailings

After mine development, in 1978, Iron Mountain Mines, Inc. submitted an application for a Clean

Water Act (CWA) Section 402 National Pollutant Discharge Elimination System (NPDES)

permit to discharge treated wastewater from the mine through an outfall to the Sacramento river . The

This Notice of Intent (NOI) is prepared by Iron Mountain Mines, Inc. and AMD&CSI as an Environmental Impact Statement (EIS) on the potential environmental impacts of the proposed operation in compliance with the Council on Environmental Quality NEPA regulations

at 40 CFR Part 1500 and 40 CFR Part 6, EPA's NEPA implementing regulations. EPA and BLM

The original NPDES permit for the mine site was superceded by ROD 1 issued in 1986. Since that time EPA has obtained interim waivers for compliance with numerical limits on pollution discharge. Prior to each permit action, EPA has not complied with NEPA by preparing an environmental assessment (EA) that evaluated the potential impacts of its actions.

On May 4, 2008, Iron Mountain Mines, Inc. submitted a request for resumption of mining for the Iron Mountain Project. The 1989 EIS did not evaluate potential impacts from developing the Iron Mountain Deposit.

Therefore, an SEIS is necessary in order to fully evaluate impacts from the Iron Mountain Project and support Iron Mountain Mine future NPDES permitting actions associated with the

Iron Mountain Project. The SEIS is also intended to support permitting of the Iron Mountain Project by the

U.S. Army Corps of Engineers (COE) under CWA Section 404. Both federal actions, the

The Iron Mountain SEIS will evaluate impacts associated with the extension of operations resulting

from developing the Iron Mountain Deposit. The SEIS will describe current site conditions and

impacts projected in the 1989 EIS. As applicable, the SEIS will discuss whether significant

impacts or changes occur Iron Mountain that were not anticipated in the 1984 EIS.

To support preparation of the Iron Mountain SEIS, Iron Mountain Mines, Inc. has prepared for Iron Mountain an environmental information document (EID) that details the proposed Iron Mountain Project, presents baseline data, and describes the impacts of the project. The EID can be obtained from the project website at

Shasta County will be the lead agency for the SEIS process, and will issue a record of decision

(ROD) documenting the SEIS conclusions and Shasta County 's decision regarding modification of the

facility's NPDES permit. As one of the cooperating agencies, the DTSC and RSWQCB will issue their own ROD to document its permitting decision regarding fill activities in waters of the U.S. , including

In addition the California Department of Natural Resources (ADNR), and the department of fish and game

Shasta County will coordinate all of the State's permitting activities. The NPS's involvement relates to

independent requirement to comply with NEPA, they each provide special expertise to the

project and the information in the SEIS may benefit their decisions regarding the project. The

roles and responsibilities of the lead and cooperating agencies are described in a Memorandum

On May 17, 2008, EPA was given notice to enter with Iron Mountain Mines, Inc. into a MOU that sets out the terms of cooperation in the development of the SEIS for a jointly owned hazardous waste repository on private property. The proposed MOU also outlines the terms under which the Iron Mountain Mines, Inc. will prepare the SEIS using a third-party contractor.

The proposed Iron Mountain Project will require no new permits or modification of existing permits

before development can proceed. The major permits or authorizations that may be required eventually by Iron Mountain are listed below.

?? CWA Section 402 NPDES permit for wastewater discharges into waters of the U.S.

?? CWA Section 404 wetlands permit for the discharge of Iron Mountain or fill material into

?? Coastal zone consistency determination under the Coastal Zone Management Act and

?? Waste Management Permit covering disposal of mine tailings, waste rock, overburden,

and solid waste, management of open pits and ground water, storage and containment of

?? CWA Section 401 certifications of reasonable assurance for NPDES/Section 402 and

Scoping is a process intended to reach out to all interested parties to assist Iron Mountain Mine and the cooperating agencies in identifying areas and issues of concern associated with the proposed

Iron Mountain Project. The process is designed to help ensure that all significant issues are fully

addressed during the course of the SEIS process. The main objectives of the scoping process are to:

?? Provide the public, regional stakeholders, and regulatory agencies with a basic

understanding of the existing Iron Mountain Mine and proposed Iron Mountain Project;

?? Provide a framework for the public to ask questions, raise concerns, and identify

?? Describes the scoping open houses and public meetings to be held in October 2009;

?? Presents a brief summary of the existing Iron Mountain operations and the proposed Iron Mountain

?? Identifies where additional information about the proposed project can be obtained;

?? Describes how the public can participate in the SEIS process after scoping; and

The scoping process will begin when EPA publishes the Notice of Intent (NOI) to prepare an SEIS in the Federal Register. This scoping document will be distributed for public and agency review and comment at the same time. The scoping comment period will end in 90 days . EPA will then review all comments, identify the issues, and distribute a scoping responsiveness summary to the public and to the State and Federal agencies and Tribal governments. The scoping responsiveness summary will summarize comments received during the scoping period and describe how EPA intends to respond to them during the SEIS process.

Each scoping meeting will include an informal open house held from 3:30 to 5:30 PM. This will

be followed by a public meeting from 6:30 to 9:00 PM that will include: (1) a presentation of the

project by EPA and the cooperating agencies; (2) a time for questions and answers; and (3) a

The scoping meetings will serve two important purposes. One is to listen to and record the

public's comments about the Iron Mountain Project as described in this scoping document. The second

is to respond to the public's requests for background information that they might need to fully

understand the project description and proposed scope of the SEIS analysis before commenting.

EPA, the cooperating agencies, and staff from Tetra Tech will be available to answer questions

and explain methodologies for interested members of the public. Scoping comments from the

public will be welcomed during the scoping meetings, or they may be submitted to EPA in

Copies of the scoping document, 1989 EIS, past EAs, and current NPDES may be viewed at the

Comments may be submitted at the open houses (in writing or recorded verbally), or they may be

submitted to EPA in writing, by e-mail, or by fax, until the comment period deadline.

Following the scoping process and identification of issues, EPA will prepare the SEIS under Iron Mountain Mines, Inc. direction. The steps involved in SEIS preparation and public

and agency review of the document are shown in Figure 2. The public is welcome to participate

throughout the SEIS process, and there are specific points at which public input is specifically

sought. These are listed below, along with their tentative dates, though schedule changes will

Figure 2: Iron Mountain Mine Remediation Project - SEIS Process and Schedule

The Iron Mountain Project includes the activities required for Iron Mountain Mines, Inc. to develop the Iron Mountain Deposit using solution mining technologies to manage and mitigate the migration of minerals from the Iron Mountain Mines site. As such, the project is considered by Iron Mountain Mines, Inc.an

extension of the existing Iron Mountain Mine superfund remediation. The following sections summarize the existing operations at the Iron Mountain Mine and the Applicant's current proposal for developing the Iron Mountain Deposit.

Initial development and construction of the Iron Mountain Mine Project began in 1896, and production

The Iron Mountain Mine includes various additional infrastructure facilities that are summarized in

EPA and the cooperating agencies have identified the following preliminary issues of concern associated with the proposed Iron Mountain Project.

?? Maintaining the quality and quantity of fishery habitat, and minimizing disruption of fish movements

?? Maintaining the quality and quantity of wildlife habitat, and minimizing impacts on wildlife

?? Minimizing potentially negative and maximizing potentially positive health impacts to residents

?? Minimizing the social, cultural, and economic impacts on residents of the region.

?? Determining appropriate cleanup levels and sampling protocols for metals contamination on NPS lands.

?? Mitigating possible cross-boundary impacts to NPS units from the mining operation and ancillary facilities including, but not limited to, vehicle and equipment air emissions, dust, night lighting, and noise.

?? Assuring that closure and post-closure costs are accurately estimated and that there is adequate financial assurance to cover costs.

?? Minimizing long-term economic risks to the land owner and the State of California

EPA is seeking public input to identify other significant concerns. All substantive issues identified by the public will be consideIron Mountain by EPA in formulating the scope of analysis for the SEIS. Following scoping, EPA will prepare a scoping responsiveness summary that will describe how the above issues and additional issues raised by the public will be responded to in the SEIS process.

NEPA requires that EISs include an assessment of cumulative impacts. Specifically, 40 CFR

Part 1508.7 defines cumulative impacts and directs federal agencies to assess, “the impact on

the environment which results from the incremental impact of the action when added to other

past, present, and reasonably foreseeable future actions regardless of what agency (Federal or

non-Federal) or person undertakes such other actions. Cumulative impacts can result from

individually minor but collectively significant actions taking place over a period of time.”

All federal and state agencies, Tribal governments, local governments, private companies,

organizations, and individuals are asked to notify EPA of any past, present, or future actions

they are aware of near the Iron Mountain Project. EPA respectfully requests this information to

ensure that the SEIS adequately addresses the cumulative impact that may occur to the

environment if the Iron Mountain Project were to be developed. If you are aware of another agency

or entity that has, is, or likely will take action near the Iron Mountain Project area, please contact

John F. Hutchens by the close of the scoping process comment period (see previous section for

Dr. Paul Anastas pioneered the field of green chemistry, which he calls “the molecular basis of sustainability.” (Yale University Green Chemistry Center)

The Environmental Protection Agency's top scientist says today's environmental problems require a “seismic shift” in the way EPA works. Living on Earth's Jeff Young profiles Paul Anastas (uh NAS tus). The green chemistry pioneer wants to put the principles of sustainability at the center of EPA science.

GELLERMAN: It's Living on Earth, I'm Bruce Gellerman. The Environmental Protection Agency recently turned 40, and like a lot of 40 year olds, the agency is taking a midlife look in the mirror - metaphorically speaking, anyway - and planning some big changes.
The EPA is undertaking what some call a "seismic shift" in the way it works: making "sustainability" its central goal. To do that, the agency is counting on Paul Anastas. The EPA's top scientist has a long track record of putting sustainability to work. Living on Earth's Jeff Young has this profile.

YOUNG: The Environmental Protection Agency started in 1970, a time when smokestacks belched pollution and rivers occasionally caught fire. The problems were big and plain to see. EPA assistant administrator Paul Anastas says today's problems are big, but a bit murkier.

ANASTAS: When we start looking at complex problems like climate change, subtle problems such as endocrine disrupting chemicals - they are more complex, they are more subtle, and they're going to need a new approach, a new thinking. There's a great quote from Albert Einstein - he said, 'problems can't be solved at the same level of awareness that created them.'

And so when we look at our current state of the environment, one of the things that we're trying to do is say, "What's our new level of awareness?" That's what we're trying to do at the EPA today.

YOUNG: Anastas leads EPA's office of research and development. He's also the agency's science advisor - in effect its top scientist. EPA's science has long rested on narrowly focused specialists deciding how much harm people and nature can tolerate. Anastas wants his scientists to think more broadly about systems and sustainability.

ANASTAS: Systems thinking means that we're going to be asking questions about how not only can we make things less bad - how do we make things better, more sustainable, more healthful. Sustainability is our true north.

YOUNG: So how might this approach that you're talking about make you better able to address a challenge like climate change?

ANASTAS: Well climate change is a key issue. Climate is inextricably linked to energy, energy inextricably linked to water, water to agriculture, agriculture to health, and we could go on and on. If we start saying that the entirety of our approach to sustainability is simply to reduce our carbon footprint or to look at any one aspect, then we will not be getting the power and the potential of the synergies of looking from a systems approach.

YOUNG: Now, forgive me if this is an unfair stereotype, but it's my impression that the agency generally goes about its business by - well, you have an expert who does water, and you have experts who do air. How do you get those different experts to all think horizontally as well as up and down?

ANASTAS: Well, you ask precisely the right question. It's not just bringing together a couple scientists. It's bringing together physical scientists, life scientists, economists, communication specialists, social and behavioral scientists - the broadest spectrum of perspectives. So, we need to understand the underlying nature of our materials and our energy.

Are they depleting, are they degrading of our natural ecosystems, are they benign to humans and the environment or are they inherently hazardous, are they resilient, or are they vulnerable? These kinds of questions are not easy questions. They just happen to be the questions that we must ask and answer if we're going to address these challenges systemically.

YOUNG: Anastas says the EPA is beginning to work this way in its assessment of toxic chemicals. That's the area where Anastas is best known. Terry Collins directs the Institute for Green Science in the Department of Chemistry at Carnegie Mellon University. He first met Anastas in the early 90's during his first stint at EPA.

COLLINS: He was a young chief of toxics at EPA, in his late 20's I think, and he'd been looking at the way the EPA functioned, which is really saying, 'No, you can't do that' or trying to say, 'No, you can't do that.' And he felt that the organization would be so much better off if it was instead encouraging industry to develop products and processes that weren't toxic in the first place. And he coined the name 'green chemistry,' and I really regard him as the father of green chemistry.

YOUNG: Anastas wrote many of green chemistry's most influential books and won the prestigious Heinz award for his vision of chemistry that eliminates toxic risks. He was director of Yale's Center for Green Chemistry and Green Engineering when President Obama tapped him for a return to service at EPA. A talk with Anastas makes clear that the sustainability effort at EPA owes a great deal to green chemistry.

ANASTAS: Green chemistry is the molecular basis of sustainability - recognizing that all we have in this world is energy and matter, energy and material, and how you redesign the material basis of our society and our economy so that they are sustainable and benign.

YOUNG: This does not sound like a tinkering-around-the-edges kind of change. You're talking about real, kind of, fundamental change about the way you guys go about business here.

ANASTAS: Yeah, this is a seismic shift. While I know that the public often doesn't think about the words 'EPA' and 'innovation' in the same sentence, this is not your grandfather's EPA.

YOUNG: Anastas knows the change he's after won't come quickly or easily. EPA has asked the National Academy of Sciences for help. Nearly thirty years ago the Academy helped shape EPA science with a publication called the Red Book.

It was a how-to guide on putting the principles of risk management to work at EPA. Now the Academy is considering a similar guide on how to incorporate the principles of sustainability. The academy's report, expected this summer, is already being called the 'Green Book.' For Living on Earth, I'm Jeff Young.

No. 11-15383
Companion Appeal: No. 09-17411
(D.C. Nos. 2:91-cv-00768-JAM/JFM and 2:91-cv-01167-DFL/JFM)
CERTIFICATE OF SERVICE BY MAIL
On February 23, 2011, I mailed the foregoing document(s) by First-Class
Mail, postage prepaid to the following non-CM/ECF participants:
Larry Corcoran, Esquire, Assistant U.S. Attorney
DOJ - U.S. DEPARTMENT OF JUSTICE
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611
T. W. Arman
P. O. Box 992867
Redding, CA 96099
Ted Arman
Iron Mountain Mines, Inc.
P. O. Box 992867
Redding, CA 96099
Signature: s/ Marilyn T. Kilian

Watershed Priorities

Ninth Circuit allows landowner to challenge impaired water listing

An odd judicial couple, conservative Jay Bybee (of torture memo fame ) and liberal Stephen Reinhardt, have combined to issue an even odder Clean Water Act standing decision. In Barnum Timber v. EPA they ruled, over the dissent of District Judge James Gwin, sitting by designation, that a landowner had standing to challenge EPA's approval of California's impaired waters list.

In general, I'm a fan of broad readings of standing to challenge agency action, because I think judicial review is essential to holding agencies accountable for carrying out their statutory obligations. But EPA shouldn't have to be accountable for injury that, even assuming it's real, is entirely caused by California.

The Clean Water Act requires that states periodically submit to EPA lists of waters that are “impaired” by pollution, meaning that they are not meeting the state's water quality standards. EPA reviews the lists and approves or disapproves them. The Clean Water Act also requires that states produce Total Maximum Daily Loads (TMDLs, essentially pollution budgets) for listed waters. But it does not require that states take any action to reduce non-point-source pollution to impaired waters. Those choices are left entirely to the states.

Here's what we know about Barnum Timber's injury from the opinion: The company owns land “in the Redwood Creek watershed.” In 2006, California submitted a list of impaired waters to EPA, including Redwood Creek, which is impaired by sediment and temperature. EPA approved the list. The listing was not new; Redwood Creek has been on the impaired list since 1992. At this late date, Barnum Timber decided to sue EPA, rather than California. It alleged that it had been injured by land use restrictions due to the listing and that its property values had decreased. It submitted affidavits from two professional foresters in support of the reduced value claim. The foresters asserted that the market value had fallen because of a public perception, correct or not, that onerous regulation would follow from the listing.

The trial judge dismissed the complaint for lack of standing, finding the claims of injury conclusory and not connected to the challenged action. The majority of the Ninth Circuit panel disagreed. Writing for himself and Judge Reinhardt, Judge Bybee concluded that Barnum Timber had met the Article III standards, showing injury in fact, causation, and redressability.

Injury in fact, according to Judge Bybee, was sufficiently established at this pleading stage by the foresters' declarations. Never mind that they had no property valuation expertise and cited no basis for their claims about public perception. Judge Gwin, dissenting, described this claimed injury as too “speculative and uncertain” to support standing, pointing out that Barnum had not identified any action that could plausibly be tied to property value reductions. This aspect of the majority decision may be wrong, but it's not particularly problematic. At the pleading stage, it's appropriate to accept plausible assertions. This one is at the outer boundaries of plausibility, but Barnum will be required to back its claims up in order to proceed.

More problematic are the majority's conclusions on causation and redressability, and the misunderstanding of the Clean Water Act they reveal (in almost his only reference to the actual terms of the Clean Water Act, Judge Bybee flubs it badly, confusing water quality standards with restrictions on discharges that violate those standards). With very little analysis, Judge Bybee endorses Barnum's claim that EPA is responsible for the alleged reduction in market value due to public perception that listing has regulatory consequences. Judge Bybee does not even ask whether the alleged public perception has any basis in reality. But surely that is relevant. EPA is not the legal cause of irrational drops in market value; public irrationality or misunderstanding is. In fact, as the dissent explains in some detail, listing as an impaired water does not, by itself, carry any regulatory consequence relevant to this land or Barnum's activities. California alone decides what timber harvest regulations to apply. The Clean Water Act imposes no limitations on timber harvest, whether or not the water is impaired. There is no conceivable scenario in which EPA will (or even could) send enforcement agents out or file suit to restrict Barnum's logging.

Beyond that, EPA didn't even decide that Redwood Creek was impaired; California did when it submitted its 1992 list. And EPA didn't decide what it would mean for Redwood Creek to be impaired; California did when it set water quality standards. Although EPA does review both state impaired water lists and state water quality standards, it does so from a floor rather than a ceiling perspective. As far as the Clean Water Act is concerned, states are free to over-regulate, but not to under-regulate. So EPA occasionally disapproves lists because they leave polluted waters out, but it would be quite odd for EPA to aggressively police whether states have included too many waters.

The redressability analysis is much the same. It's a slam dunk for the majority once it has incorrectly concluded that the impaired listing causes injury to go on to say that a court order invalidating the listing will fix the problem. Again Judge Bybee wastes no time looking at the Clean Water Act. But because the Act is a floor rather than a ceiling, whether or not Redwood Creek is impaired for Clean Water Act purposes is irrelevant for whether or not California chooses to protect it from careless logging practices. Judge Bybee says, correctly, that Barnum does not have to show that EPA is the only cause of its problem, or that the judgment it seeks will completely fix the problem.

When the Environmental Protection Agency (EPA) was launched in 1970 , its stated mission was to “conduct environmental research, provide assistance…[in] combating environmental pollution, and assist the Council on Environmental Quality in developing and recommending…new policies for environmental protection…to the President.” From these things, it's clear that President Richard Nixon's goal in creating the EPA was to put an agency in place that would fill a research and advisory role for both himself and future presidents. There was no indication that he intended an ideologically driven juggernaut that not only researched but actually took unto itself the power to mandate the most stringent of eco-centered, blatantly anti-capitalist environmental guidelines and regulations imaginable.

In fact, the EPA is so far from its original purposes that in just the past few years officials from that agency have addressed everything from regulating to livestock emissions (cow flatulence) to regulating America's water supply to putting their own Cap and Trade regulations in place. The latter truly reveals just how much power the EPA has taken unto itself, insofar as members of that agency are trying to put Cap and Trade in place although the American people and the U.S. Senate have already rejected it on face value. (Cap and Trade would be a boon to the already burgeoned EPA in that it would not only allow them to write guidelines and flood manufacturers with new regulations, but it would also put them in the catbird seat as the ones who would enforce and oversee the implementation of the regulations they write.)

The Environmental Protection Agency (EPA) has initiated a national rulemaking process to establish a new program to reduce stormwater discharges from new development and as well as redevelopment. During this process, the EPA is expected to evaluate green infrastructure design techniques that mimic natural water processes, including approaches that infiltrate and recharge, evapotranspire, and harvest and reuse precipitation. Landscape architects are currently working with many communities to employ green infrastructure design techniques that address stormwater management and other water quality issues. To show the EPA how green infrastructure works, submit case studies about successful stormwater management projects . Demonstrate to the EPA that green infrastructure is a highly-effective and cost-efficient approach to improving the quality of the water supply.

Specifically, EPA's new rulemaking process seeks to establish requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all Municipal Separate Sanitary Sewer Systems (MS4s); require MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.

In 2006, EPA requested the National Research Council (NRC) to conduct a review of its stormwater program. In October 2008, NRC released its report Urban Stormwater Management in the United States (The National Academies Press, 2009), which found, among other things, that “the rapid conversion of land to urban and suburban areas has profoundly altered how water flows during and following storm events, putting higher volumes of water and more pollutants into the nation's rivers, lakes, and estuaries. These changes have degraded water quality and habitat in virtually every urban stream system.” The report recommends a number of actions, including conserving natural areas, reducing hard surface cover (e.g., roads, parking lots, impervious surfaces), and retrofitting urban areas with features that hold and treat stormwater.

Throughout 2010, the EPA held a number of listening sessions across the country to hear views, ideas and input from various stakeholders. The EPA has also issued “Information Collection Requests” and other data collection questionnaires to gather information and assess what revisions are needed to its stormwater requirements. After reviewing and analyzing the data, EPA intends to issue a draft rule in September of 2011 and a final stormwater rule sometime in 2012.

Bill seeks to speed up EPA action on mine permits

Opposition to the US Department of Energy's fiscal 2012 budget request grew louder Thursday, with Republicans on the House of Representatives committee that oversees DOE research spending Thursday blasting the Obama administration's fiscal 2012 budget request for wasting money at a time of economic turmoil.

"While I strongly support an 'all-of-the-above' approach to energy security, I'm concerned that this plan entails spending we can't afford and taxes and regulations that would raise the cost of energy and harm our economy," said Ralph Hall, a Texas Republican and the chairman of the House Science, Space and Technology Committee.

Energy Secretary Steven Chu defended his agency's fiscal 2012 budget request to the committee, which included steep hikes to the department's Office of Science, as well the Office of Energy Efficiency and Renewable Energy.

"To lead in the global clean-energy economy, we must mobilize American's innovation machine in order to bring technologies from the laboratory to the marketplace," Chu said. DOE "is on the front lines of this effort."

Despite cuts to most other federal agencies, President Barack Obama requested $29.5 billion for the agency in fiscal 2012, 12% above the $26.4 billion it received in fiscal 2010. President Barack Obama's federal budget request also included the elimination of billions of dollars in tax breaks for the petroleum industry.

But Democrats on the committee backed DOE's spending strategy.

"Our economic woes weren't caused by too much science," the senior Democrat on the committee, Representative Eddie Bernice Johnson, said. "At a time like this wee need to make the critical investments to bolster our research infrastructure and our future workforce, advancing our technological capabilities now, while sowing the seeds for the industries of the future.

Obama's budget increases for DOE is unlikely to be an easy sell in Congress, where Republicans and Democrats are currently battling over a stopgap spending measure for the rest of fiscal 2011 that would cut billions from DOE's current spending.

The cuts would mostly target the department's science, energy efficiency and renewable energy programs. In addition, Republicans on the House committee that oversees DOE's budget have said it is unlikely the department will see any increases.

Republicans swept into a majority in the House this year, but Democrats still contol the Senate.

While Democrats in the Senate Energy and Water Committee have supported the DOE request, Republicans on that panel have warned they would oppose increases, and senior Republicans on the Senate Budget Committee also have attacked DOE's strategy.

--Derek Sands, derek_sands@platts.com

Senate Hearing to Examine the Effectiveness of the Toxic Substances Control Act

BACKGROUND: Senator Frank R. Lautenberg (D-NJ), Chairman of the Subcommittee on Superfund, Toxics, and Environmental Health, will hold a hearing to examine the effectiveness of the Toxic Substances Control Act (TSCA). GW School of Public Health and Health Services Dean Lynn Goldman will testify at the hearing.

WEBCAST: Webcast will be available at http://epw.senate.gov starting at 10:00 a.m.

• The Honorable Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency

• Ms. Kelly M. Semrau, Senior Vice President for Global Corporate Affairs, Communication, and Sustainability, SC Johnson
• Mr. Steve Goldberg, Vice President and Associate General Counsel, BASF
• Ms. Frances Beinecke, President, Natural Resources Defense Council
• Mr. Cal Dooley, President, American Chemistry Council
• Dean Lynn Goldman, MD, MPH, Dean, George Washington University School of Public Health and Health Services

Just a reminder: If you would like us to save a seat for you, please let your Senate Press Gallery know, and drop Nathan McCray at Nathan_mccray@epw.senate.gov a note to let us know you're coming. Please note that media are required to display current Senate press credentials. In order to guarantee that a seat can be saved, please plan to arrive promptly, prior to the scheduled start time of the hearing. Television producers should contact the Senate Radio and TV Gallery in advance if possible to ensure that we're ready to accommodate you.

About The George Washington University Medical Center
The George Washington University Medical Center is an internationally recognized interdisciplinary academic health center that has consistently provided high-quality medical care in the Washington, D.C. metropolitan area since 1824. The Medical Center comprises the School of Medicine and Health Sciences, the 11th oldest medical school in the country; the School of Public Health and Health Services, the only such school in the nation's capital; GW School of Nursing; GW Hospital, and The GW Medical Faculty Associates. For more information on GWUMC, visit www.gwumc.edu .

CONTACT:
EPA Press Office
press@epa.gov
202-564-6794

FOR IMMEDIATE RELEASE
February 1, 2011

EPA Administrator to Testify on Public Health and Drinking Water Issues

WASHINGTON – U.S. EPA Administrator Lisa P. Jackson will testify before the U.S. Senate Committee on Environment and Public Works tomorrow on EPA's role in addressing public health concerns related to drinking water issues. She will be joined by Linda Birnbaum, Ph.D., D.A.B.T., A.T.S., director of the National Institutes of Environmental Health Sciences.

Hearing details:

WHO: EPA Administrator Lisa P. Jackson

WHAT: Testifying before the Senate Committee on Environment and Public Works

WHEN: 10:00 a.m., Wednesday, February 2, 2011

WHERE: 406 Dirken Senate Office Building, Washington, D.C.

CA Codes (ccp:259) CODE OF CIVIL PROCEDURE SECTION 259

259. Subject to the supervision of the court, every court commissioner shall have power to do all of the following: (a) Hear and determine ex parte motions for orders and alternative writs and writs of habeas corpus in the superior court for which the court commissioner is appointed. (b) Take proof and make and report findings thereon as to any matter of fact upon which information is required by the court. Any party to any contested proceeding may except to the report and the subsequent order of the court made thereon within five days after written notice of the court's action. A copy of the exceptions shall be filed and served upon opposing party or counsel within the five days. The party may argue any exceptions before the court on giving notice of motion for that purpose within 10 days from entry thereof. After a hearing before the court on the exceptions, the court may sustain, or set aside, or modify its order. (c) Take and approve any bonds and undertakings in actions or proceedings, and determine objections to the bonds and undertakings. (d) Act as temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant. While acting as temporary judge the commissioner shall receive no compensation therefor other than compensation as commissioner. (e) Hear and report findings and conclusions to the court for approval, rejection, or change, all preliminary matters including motions or petitions for the custody and support of children, the allowance of temporary spousal support, costs and attorneys' fees, and issues of fact in contempt proceedings in proceedings for support, dissolution of marriage, nullity of marriage, or legal separation. (f) Hear actions to establish paternity and to establish or enforce child and spousal support pursuant to subdivision (a) of Section 4251 of the Family Code. (g) Hear, report on, and determine all uncontested actions and proceedings subject to the requirements of subdivision (d).

Washington, D.C., January 14, 2011 — The Competitive Enterprise Institute today sharply criticized the Environmental Protection Agency for its decision to revoke a Clean Water Act permit of an existing surface coal mine in Logan County, West Virginia as an abuse of power that will drive away investment in future energy projects and destroy jobs. “The EPA's rationale for revoking the Clean Water Act permit for the Spruce Fork Mine is to protect an insect that lives for a day, and which isn't even an endangered species ,” explained William Yeatman , a CEI energy policy expert . Yeatman has written extensively about the Obama Administration's attacks on surface coal mining in Appalachia . (See, e. g., “ Pests Over People ,” The Washington Times , May 2010.) “In this difficult economy,” Yeatman continued, “it is outrageous that the EPA would trade jobs for bugs, just so it can appease the President's environmental base. “Worse still, the EPA's ill-conceived bug protections threaten virtually all economic development. In order to crack down on the Spruce Fork Mine, the EPA had to manufacture a new “pollutant”—salinity,” said Yeatman. “The problem is that any surface disturbance can increase salinity in nearby streams. As a result, environmental pressure groups and NIMBY activists have a powerful new weapon with which they can stifle job creation.” “EPA's revocation of an already-granted permit for an operating mine is only the latest outrageous step in the Obama administration's campaign to scare away investment and destroy jobs in America's energy industries ,” said Myron Ebell , director of CEI's Center for Energy and Environment . “Who is going to invest in a new energy project if a permit can be yanked after the project is fully permitted and the investments have been made?” > See “ EPA Blasted as It Revokes Mine's Permit ” in today's Wall Street Journal and " Agency Revokes Permit for Major Coal Mining Project ," New York Times > Read more on energy policy at Globalwarming.org .

Business News

AIG pays Federal Reserve $47 billion

NEW YORK, Jan. 15 (UPI) -- American International Group Inc. has paid off the Federal Reserve Bank of New York but U.S. taxpayers are still on the hook for $94 billion, officials said.

The New York Fed received $47 billion from AIG Friday and terminated the credit line it provided the insurance giant in its September 2008 bailout, The Wall Street Journal reported. Of that amount, $20 billion came from the U.S. Treasury Department, which separately exchanged $49 billion in preferred shares in AIG for common shares representing a 92.1 percent ownership stake it intends to sell down the road.

Treasury will reap a profit if it can sell its AIG shares above $28.70, the Journal said. The stock was at $54 Friday.

The current bailout total outstanding is down from $120 billion earlier, the Journal said.

The repayment by AIG "concludes an important effort by the Federal Reserve to stabilize the financial system in order to protect the U.S. economy," said New York Fed President William Dudley.

The government is "optimistic that taxpayers will get back every dollar of their investment in AIG," said Timothy Geithner, secretary of the Treasury.

Of the money AIG repaid Friday, $27 billion came from proceeds of its recent asset sales.

"Today truly marks a new beginning," AIG Chief Executive Officer Robert Benmosche said. "We recognize that we have to stand on our own and meet the expectations of the marketplace."

AIG is still a large and diversified insurance company after selling most of its overseas life insurance businesses to repay taxpayers, Benmosche said.

"Our performance has improved, we've pulled out of the crisis, and you will see AIG continue to grow as it did before," Benmosche said.

WASHINGTON, D.C. - The U.S. Supreme Court on Jan. 10 denied certiorari to paint companies that formerly made lead-based paint, which had contended that the California Supreme Court erred when it allowed contingency fee agreements between a group of California municipalities and private plaintiffs' counsel. The agreements had been used to cover the costs of suing the paint companies for allegedly creating a public nuisance (Atlantic Richfield Company, et al. v. County of Santa Clara, et al., No. 10-546, U.S. Sup.; See December 2010, Page 4). Full story on lexis.com

EPA's revocation of Spruce mine Clean Water Act permit has ‘staggering implications'

For the first time EPA has revoked a previously issued, valid Clean Water Act Section 404 permit for a U.S. mining project, an action officials say jeopardizes far more than mining.

The EPA has made good on its threat to revoke Clean Water Section 404 permits for coal mining operations in Appalachia, announcing Thursday it would use its authority to revoke the permit allowing disposal of mining waste at the Mingo-Logan Coal Company's Spruce No. 1 coal mine in West Virginia.

The agency has now officially revoked a permit granted by the Bush Administration in 2007 to the coal mining project being developed by parent company Arch Coal of St. Louis.

The decision resulted in protests from the National Mining Association and the Foundation for American Coal Energy, whose West Virginia executive director called it an assault on the U.S. Economy.

"Today's unprecedented action by the EPA offers more proof that this administration and the EPA are paying lip service to the employment and economic challenges this state and our country are facing," said Bryan Brown, West Virginia executive director of FACES of Coal. "Every road project, construction project or mine site that has received valid CWA 404 permits in the past is now in jeopardy of having that permit vetoed or revoked."

"It's absurd," Brown declared, vowing the organization will look to Congress for a remedy.

National Mining Association CEO Hal Quinn said, "EPA's veto of an existing, valid permit for the Spruce No. 1 mine threatens the certainty of all Section 404 permits. ...The Spruce permit was issued after a robust 10-year review, including an exhaustive Environmental Impact Statement."

"EPA participated fully in the comprehensive permitting process, and the project has abided by every permit requirement," Quinn noted. "NMA urges the administration to step back from this unwarranted action and restore trust in the sanctity of lawfully granted and abided by permits and the jobs and economic activity they support."

In a news release issued Thursday, EPA Assistant Administrator for Water Peter S. Silva said. "The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend."

"Coal and coal mining are part of our nation's energy future and EPA has worked with companies to design mining operations that adequately protect our nation's waters," he added. "We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water."

EPA said its decision came after discussions with the coal company "failed to produce an agreement that would lead to a significant decrease in impacts to the environment and Appalachian communities. ...Despite EPA's willingness to consider alternatives, Mingo Logan did not offer any new proposed mining configurations in response to EPA's Recommendation."

The agency said Spruce No. 1 would have buried more than "35,000 feet of high-quality streams under mining waste, which will eliminate all fish, small invertebrates, salamanders, and other wildlife that live in them."

In addition, EPA claimed Spruce No. 1 would have buried "more than six miles of high-quality streams in Logan County, West Virginia with millions of tons of mining waste from the dynamiting of more than 2,200 acres of mountains and forestlands."

Kim Link, Arch Coal's spokeswoman, told the New York Times "We remain shocked and dismayed at EPA's continued onslaught with respect to this validly issued permit."

"Furthermore, we believe this decision will have a chilling effect on future U.S. investment because every business possessing or requiring a permit under Section 4-4 of the Clean Water Act will fear similar overreaching by the EPA," she added. "It's a risk many businesses cannot afford to take."

In a letter to the chairwoman of the White House Council of Environmental Quality, a group of regulated industries said "every similarly valid permit held by any entity-business, public works agencies and individual citizens-will be in increased regulatory limbo and potential subject to the same unilateral, after-the-fact revocation."

"The implications could be staggering, reaching all areas of the U.S. economy including but not limited to the agriculture, home building, mining, transportation and energy sectors," they added.

Newly elected U.S. Sen. Joe Manchin, the former governor of West Virginia, declared," While the EPA decision hurts West Virginia today, it has negative ramifications for every state in our nation, and I strongly urge every Senator and every Member of Congress to voice their opposition."

"According to the EPA, it doesn't matter if you did everything right, if you follow all of the rules. ...They just change the rules," Manchin said. "But what the EPA doesn't seem to understand is that this decision has ramifications that reach far beyond coal mining in West Virginia."

He accused to the agency of "essentially sending a message to every business and industry that the federal government has no intention of honoring past promises and that no investment is safe."

However, environmental groups praised the EPA's decision. Jim Hecker, a lawyer at the Public Justice, said, "This veto is fully justified by the enormous harm that the mine would inflict and is the culmination of a legal battle that began in 1999 when the Corps made the outrageous decision that this huge mine burying over 10 miles of streams would have only ‘minimal' effects."

Earthjustice Senior Legislative Counsel Joan Mulhern said "we hope this veto will be the beginning of the end of the devastating practice of mountaintop mining by bringing the fundamental legal protection of the Clean Water Act to the whole Appalachian region, once and for all."

The Federalist, No. 45

Rep. Griffith blasts EPA over revoked mining permit

Freshman U.S. Rep. Morgan Griffith, R-Va., joined a growing furor over a decision by the Environmental Protection Agency to revoke a surface mining permit in West Virginia.

The Spruce No. 1 Mine in southern West Virginia was approved four years ago. The EPA announced Thursday it was pulling the permit.

“Yesterday we witnessed another attempt by the EPA to scrap valuable American jobs in the coalfields for no reason,” Griffith, newly elected to represent Virginia's 9th District, said Friday. “In a time of troubling unemployment rates, I'm outraged that the EPA's Washington bureaucrats think it's a good idea to take away good-paying local jobs.”

Griffith said the Spruce No. 1 incident “marks the first time the EPA has ever vetoed a project that was previously granted a permit. This sets a dangerous precedent. If the EPA can grant a permit and then take it away, small businesses and working families are assured of the one thing they don't need more of — uncertainty.”

Read the expanded version of this report in the print edition or the enhanced electronic version of the Kingsport Times-News.

The Fed Has Spoken: No Bailout for Main Street

The Federal Reserve was set up by bankers, for bankers, and it has served them well. Out of the blue, the Fed came up with $12.3 trillion in nearly interest-free credit to bail the banks out of a credit crunch they created. That same credit crisis has plunged state and local governments into insolvency, but the Fed has now delivered its ultimatum: there will be no "quantitative easing" for municipal governments.

On January 7, according to The Wall Street Journal , Federal Reserve Chairman Ben Bernanke announced that the Fed had ruled out a central bank bailout of state and local governments. "We have no expectation or intention to get involved in state and local finance," he said in testimony before the Senate Budget Committee. The states "should not expect loans from the Fed."

So much for the proposal of President Barack Obama, reported in Reuters a year ago, to have the Fed buy municipal bonds to cut the heavy borrowing costs of cash-strapped cities and states.

The credit woes of state and municipal governments are a direct result of Wall Street's malfeasance. Their borrowing costs first shot up in 2008, when the "monoline" bond insurers lost their own credit ratings after gambling in derivatives. The Fed's low-interest facilities could have been used to restore local government credit, just as they were used to restore the credit of the banks. But Bernanke has now vetoed that plan.

Why? It can hardly be argued that the Fed doesn't have the money. The collective budget deficit of the states for 2011 is projected at $140 billion, a mere drop in the bucket compared to the sums the Fed managed to come up with to bail out the banks. According to data recently released, the central bank provided roughly $3.3 trillion in liquidity and $9 trillion in short-term loans and other financial arrangements to banks, multinational corporations and foreign financial institutions following the credit crisis of 2008.

The argument may be that continuing the Fed's controversial "quantitative easing" program (easing credit conditions by creating money with accounting entries) will drive the economy into hyperinflation. But creating $12.3 trillion for the banks - nearly 100 times the sum needed by state governments - did not have that dire effect. Rather, the money supply is shrinking - by some estimates, at the fastest rate since the Great Depression. Creating another $140 billion would hardly affect the money supply at all.

Why didn't the $12.3 trillion drive the economy into hyperinflation? Because, contrary to popular belief, when the Fed engages in "quantitative easing," it is not simply printing money and giving it away. It is merely extending CREDIT, creating an overdraft on the account of the borrower to be paid back in due course. The Fed is simply replacing expensive credit from private banks (which also create the loan money on their books) with cheap credit from the central bank.

So why isn't the Fed open to advancing this cheap credit to the states? According to Bernanke, its hands are tied. He says the Fed is limited by statute to buying municipal government debt with maturities of six months or less that is directly backed by tax or other assured revenue, a form of debt that makes up less than 2 percent of the overall municipal market. Congress imposed that restriction, and only Congress can change it, said Bernanke.

That statement may sound like he is passing the buck, but he is probably right. Bailing out state and local governments IS outside the Fed's mandate. The Federal Reserve Act was drafted by bankers to create a bankers' bank that would serve their interests. No others need apply. The Federal Reserve is the bankers' own private club, and its legal structure keeps all non-members out.

That is how the Fed is structured today, but it hasn't always been that way. In 1934, Section 13(b) was added to the Federal Reserve Act, authorizing the Fed to "make credit available for the purpose of supplying working capital to established industrial and commercial businesses." This long-forgotten section was implemented and remained in effect for 24 years. In a 2002 article called "Lender of More Than Last Resort," posted on the Minneapolis Fed's website, David Fettig summarized its provisions as follows:

Today, that venture into commercial banking sounds like a radical departure from the Fed's given role, but at the time it evidently seemed like a reasonable alternative. Fettig notes that "the Fed was still less than 20 years old and many likely remembered the arguments put forth during the System's founding, when some advocated that the discount window should be open to all comers, not just member banks." In Australia and other countries, the central bank was then assuming commercial as well as central bank functions.

Section 13(b) was repealed in 1958, but one state has kept its memory alive. In North Dakota, the publicly owned Bank of North Dakota (BND) acts as a "mini-Fed" for the state. Like the Federal Reserve of the 1930s and 1940s, the BND makes loans to local businesses and participates in loans made by local banks.

The BND has helped North Dakota escape the credit crisis. In 2009, when other states were teetering on bankruptcy, North Dakota sported the largest surplus it had ever had. Other states, whose own budget crises prompted them to explore alternatives, are now looking to North Dakota for inspiration.

Although Section 13(b) was repealed, the Federal Reserve Act retained enough vestiges of it in 2008 to allow the Fed to intervene to save a variety of non-bank entities from bankruptcy. The problem was that the tool was applied selectively. The recipients were major corporate players, not local businesses or local governments. Fettig writes:

Section 13(b) may be a memory ... but Section 13 paragraph 3 ... is alive and well in the Federal Reserve Act.... [T]his amendment allows, "in unusual and exigent circumstances," a Reserve bank to advance credit to individuals, partnerships and corporations that are not depository institutions.

In 2008, the Fed bailed out investment company Bear Stearns and insurer American International Group (AIG), neither of which was a bank. John Nichols reports in The Nation that Bear Stearns got almost $1 trillion in short-term loans, with interest rates as low as 0.5 percent. The Fed also made loans to other corporations, including General Electric (GE), McDonald's and Verizon.

In 2010, Section 13(3) was modified by the Dodd-Frank bill, which replaced the phrase "individuals, partnerships and corporations" with the vaguer phrase "any program or facility with broad-based eligibility." As explained in the notes to the bill:

Only Broad-Based Facilities Permitted. Section 13(3) is modified to remove the authority to extend credit to specific individuals, partnerships and corporations. Instead, the Board may authorize credit under section 13(3) only under a program or facility with "broad-based eligibility."

What programs have "broad-based eligibility" isn't clear from a reading of the Section, but long-term municipal bonds are evidently excluded. Bernanke said that if municipal defaults became a problem, it would be in Congress's hands, not his.

Congress could change the law, just as it did in 1934, 1958 and 2010. It could change the law to allow the Fed to help Main Street just as it helped Wall Street. But, as Sen. Dick Durbin (D-Illinois) blurted out on a radio program in April 2009, Congress is owned by the banks. Changes in the law today are more likely to go the other way. Mike Whitney, writing for Global Research in December 2010, noted :

So far, not one CEO or CFO of a major investment bank or financial institution has been charged, arrested, prosecuted, or convicted in what amounts to the largest incident of securities fraud in history. In the much-smaller Savings and Loan investigation, more than 1,000 people were charged and convicted.... [T]he system is broken and the old rules no longer apply.

The old rules no longer apply because they have been changed to suit the moneyed interests that hold Congress and the Fed captive. The law has been changed not only to keep the guilty out of jail, but to preserve their exorbitant profits and bonuses at the expense of their victims.

To do this, the Federal Reserve had to take "extraordinary measures." They were extraordinary, but not illegal, because the Fed's congressional mandate made them legal. Nobody's permission even had to be sought. Section 13(3) of the Federal Reserve Act allows the Fed to do what it needs to do in "unusual and exigent circumstances" to save its constituents.

If you're a bank, it seems, anything goes. If you're not a bank, you're on your own.

Highlighting the immediacy of the local government budget crisis, The Wall Street Journal quoted Meredith Whitney, a banking analyst who recently turned to analyzing state and local finances. She said on a recent broadcast of CBS's "60 Minutes" that, in 2011, the US could see "50 to 100 sizable defaults" amounting to "hundreds of billions of dollars" among its local governments.

If the Fed could so easily come up with $12.3 trillion to save the banks, why can't it find a few hundred billion under the mattress to save the states? Obviously, it could, if Congress were inclined to put non-bank lending back into the Fed's job description. Then why isn't that being done? The cynical view is that the states are purposely being kept on the edge of bankruptcy because the banks that hold Congress hostage want the interest income and the control.

Whatever the reason, Congress is standing down while the nation is sinking. Congress must summon the courage to take needed action, and that action is not to impose "austerity" by cutting services at a time when an already squeezed populace most needs them. Rather, Congress must create the jobs that will generate real productivity. To do this, it would not even have to go through the Federal Reserve. It could issue its own debt-free money and spend it on repairing and modernizing our decaying infrastructure, among other needed works. Congress's task will become easier if the people stand with them in demanding action, but Congress is now so gridlocked that change may still be long in coming.

In the meantime, the states could take matters into their own hands and set up their own state-owned banks based on the BND's model. They could then have their own very low-interest credit lines, just as the Wall Street banks do. Rather than spending or selling off valuable public assets or hoarding them in massive rainy day funds made necessary by the lack of ready credit, states could leverage their assets into a very strong and abundant local credit system, following the accepted business practices of the Wall Street banks themselves.

Building Strong

Lt. Gen. Robert L. Van Antwerp fortifies USACE for the future.

Ask Lt. Gen. Robert L. Van Antwerp what he's most proud of as his tenure as USACE chief of engineers and commanding general nears its conclusion and he'll tell you over and over, “It's our people.”

From day one on the job, Gen. “Van” has sought to improve the U.S. Army Corps of Engineers (USACE) by strengthening its greatest asset – the dedicated Soldiers and civilians who execute the command's vital missions around the world. Armed with a strategy now known Corps-wide as the “Campaign Plan,” Van Antwerp has made the development and recruitment of human capital a priority. In parallel, he has encouraged USACE personnel to cultivate a culture of innovation from the division and district levels right down to the individual.

Appeals court upholds Utah Superfund listing

WASHINGTON -- A federal appeals court has upheld the Environmental Protection Agency's addition of an U.S. Magnesium site in Utah to the Superfund list.

The U.S. Court of Appeals for the District of Columbia Circuit dismissed the company's challenge on Friday.

The 4,525-acre site about 40 miles west of Salt Lake City has been used for magnesium production since 1972.

EPA officials say the site is heavily contaminated. Company officials have said the EPA overstated any hazards. But the appeals court says the agency's decision was not "arbitrary or capricious."

Superfund listings are only for the most contaminated places. It makes cleanup a national priority and allow the EPA and state officials to oversee the work.

Energy.gov Gets a Facelift for the Short Term

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MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205. The revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemical-specific standards identified in ROD 5 for the protection of freshwater. COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;

TITLE 28 > PART VI > CHAPTER 158 > § 2348 Prev | Next

§ 2348. Representation in proceeding; intervention

How Current is This? The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order. The Attorney General may not dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute, defend, or continue the proceeding unaffected by the action or inaction of the Attorney General.

TITLE 28 > PART VI > CHAPTER 158 > § 2343 Prev | Next

§ 2343. Venue
How Current is This? The venue of a proceeding under this chapter is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.

TITLE 28 > PART VI > CHAPTER 158 > § 2351 Prev | Next

§ 2351. Enforcement of orders by district courts

How Current is This? The several district courts have jurisdiction specifically to enforce, and to enjoin and restrain any person from violating any order issued under section 193 of title 7 .

TITLE 7 > CHAPTER 9 > SUBCHAPTER II > Part A > § 193 Prev | Next

§ 193. Procedure before Secretary for violations
How Current is This? (a) Complaint; hearing; intervention Whenever the Secretary has reason to believe that any packer or swine contractor has violated or is violating any provision of this subchapter, he shall cause a complaint in writing to be served upon the packer or swine contractor, stating his charges in that respect, and requiring the packer or swine contractor to attend and testify at a hearing at a time and place designated therein, at least thirty days after the service of such complaint; and at such time and place there shall be afforded the packer or swine contractor a reasonable opportunity to be informed as to the evidence introduced against him (including the right of cross-examination), and to be heard in person or by counsel and through witnesses, under such regulations as the Secretary may prescribe. Any person for good cause shown may on application be allowed by the Secretary to intervene in such proceeding, and appear in person or by counsel. At any time prior to the close of the hearing the Secretary may amend the complaint; but in case of any amendment adding new charges the hearing shall, on the request of the packer or swine contractor, be adjourned for a period not exceeding fifteen days. (b) Report and order; penalty If, after such hearing, the Secretary finds that the packer or swine contractor has violated or is violating any provisions of this subchapter covered by the charges, he shall make a report in writing in which he shall state his findings as to the facts, and shall issue and cause to be served on the packer or swine contractor an order requiring such packer or swine contractor to cease and desist from continuing such violation. The testimony taken at the hearing shall be reduced to writing and filed in the records of the Department of Agriculture. The Secretary may also assess a civil penalty of not more than $10,000 for each such violation. In determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General who may recover such penalty by an action in the appropriate district court of the United States. (c) Amendment of report or order Until the record in such hearing has been filed in a court of appeals of the United States, as provided in section 194 of this title, the Secretary at any time, upon such notice and in such manner as he deems proper, but only after reasonable opportunity to the packer or swine contractor to be heard, may amend or set aside the report or order, in whole or in part. (d) Service of process Complaints, orders, and other processes of the Secretary under this section may be served in the same manner as provided in section 45 of title 15 .
TITLE 28 > PART VI > CHAPTER 158 > § 2347 Prev | Next

TITLE 5 > PART I

PART I—THE AGENCIES GENERALLY
How Current is This?

CHAPTER 1 —ORGANIZATION (§§ 101—105)

CHAPTER 3 —POWERS (§§ 301—306)

CHAPTER 5 —ADMINISTRATIVE PROCEDURE (§§ 500—596)

CHAPTER 6 —THE ANALYSIS OF REGULATORY FUNCTIONS (§§ 601—612)

CHAPTER 7 —JUDICIAL REVIEW (§§ 701—706)

CHAPTER 8 —CONGRESSIONAL REVIEW OF AGENCY RULEMAKING (§§ 801—808)

CHAPTER 9 —EXECUTIVE REORGANIZATION (§§ 901—913)

TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE
How Current is This?

§ 551 . Definitions

§ 552 . Public information; agency rules, opinions, orders, records, and proceedings

§ 552a . Records maintained on individuals

§ 552b . Open meetings

§ 553 . Rule making

§ 554 . Adjudications

§ 555 . Ancillary matters

§ 556 . Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

§ 557 . Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record

§ 558 . Imposition of sanctions; determination of applications for licenses; suspension, revocation, and expiration of licenses

§ 559 . Effect on other laws; effect of subsequent statute

TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II > § 553 Prev | Next

§ 553. Rule making
How Current is This? (a) This section applies, according to the provisions thereof, except to the extent that there is involved— (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

§ 2347. Petitions to review; proceedings
How Current is This? (a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law. (b) When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall— (1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law; (2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is governed by the Federal Rules of Civil Procedure. (c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that— (1) the additional evidence is material; and (2) there were reasonable grounds for failure to adduce the evidence before the agency; the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or the order setting aside the original order.

The only remedial action found (CA-10) to be fully protective of human health and the environment is the complete removal of the source. (i.e. finish the mining.) EPA 1985

Nothing Comes From Nothing

expanding private sector partnerships.

(Rules of the road? Stay out of ditch, AVOID IMPACT!)

a diriment impediment

Vetitum tempus clausum, conditio servilis, vis et metus

SEPARATION OF CHURCH AND STATE

CONTACT:
EPA Press Office
press@epa.gov

FOR IMMEDIATE RELEASE
January 14, 2011

EPA Administrator to Participate in Martin Luther King, Jr. Day of Service Events

WASHINGTON – On Monday, Jan. 17, U.S. Environmental Protection Agency Administrator Lisa P. Jackson will commemorate Dr. Martin Luther King, Jr. Day during two events. First, she will join U.S. Department of Education Secretary Arne Duncan, Reverend Al Sharpton, and a number of elected officials, at a breakfast hosted by the National Action Network, where she will give remarks. The breakfast is titled “Concrete Progress toward King's Dream” and will focus on the advancements made toward equality in the U.S.

Later, Jackson will speak to participants during Kid Power Inc.'s community service event at Tubman Elementary and tour the school's citizen farm. The event will highlight the importance of access to healthy foods in urban environments and the roles of youth and schools in environmental protection and education.

Both events are open to the press.

Monday, January 17, 2011

9:15 a.m. Administrator Jackson Joins U.S. Department of Education Secretary Arne
Duncan, Reverend Al Sharpton, and others at National Action Network Breakfast

The Madison Hotel (Dolly Madison Ballroom)
1177 15th St. NW
Washington, DC

*Note: Reporters wishing to attend this event must RSVP to press@epa.gov

11:00 a.m. Administrator Jackson Kicks Off Kid Power Inc.'s community service event

Tubman Elementary School
3101 13th St. NW
Washington, DC

*Note: Reporters wishing to attend this event must RSVP to press@epa.gov

R016

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EPA: Water administrator resigns

Greenwire
January 14, 2011

Paul Quinlan, E&E reporter

U.S. EPA's top water official, Pete Silva, announced his resignation today.

Silva, whom President Obama appointed the assistant administrator for water in July 2009, plans to return to his home and family in California, EPA Administrator Lisa Jackson said in a memo to staff.

The announcement of Silva's departure comes a day after his office made a controversial decision to revoke the permit of one of the largest mountaintop mines ever proposed in Appalachia (Greenwire, Jan. 13).

The decision on the West Virginia mine came as EPA's water office worked on regulations of ash from coal-burning plants and pollution limits for stormwater discharges. The office is also working on clarifying which waterways and wetlands it regulates under the Clean Water Act.

"During his tenure, Pete has led a wide range of important actions to help protect the water we drink and safeguard the health of millions of Americans," Jackson wrote. "We have greatly valued his service, and we offer him our deepest thanks as he prepares to embrace new opportunities. We are beginning the search for his successor."

Nancy Stoner, who came from the Natural Resources Defense Council to become the deputy assistant administrator for the water office, will serve as acting assistant administrator in Silva's absence. Silva leaves Feb. 12.

"Nancy is exceptionally talented and knowledgeable, and I am confident that she will continue to contribute significantly to the office's excellent work in this role," Jackson wrote.

Jackson also announced the appointment of Bicky Corman as deputy associate administrator for the Office of Policy and Joel Beauvais as senior adviser in the Office of General Counsel.

Blunt blasts EPA for Ameren lawsuit

Republican Sen. Roy Blunt blasted the Environmental Protection Agency for a lawsuit filed earlier in the week against Ameren Missouri for alleged Clean Air Act violations at the utility's Rush Island power plant.

In a letter sent Friday to EPA Adminsitrator Lisa Jackson, and obtained by the Post-Dispatch , Blunt said Ameren is being punished for making improvements at the Rush Island power plant that were "clearly aimed at reducing emissions."

"It would not be difficult to draw the conclusion that this recent lawsuit is another backdoor method used by the EPA to broadly penalize the use of coal in the United States," Blunt wrote. "To the extent that the EPA's efforts to deter the use of coal through executive fiat are furthered through the lawsuit against Ameren and its modification program at the Rush Island plant, I intend to closely examine the motives behind this legal action."

EPA ENFORCEMENT | AUDIT NOTICE | RISKS

NEPA is supposed to be about good decision-making — not endless documentation.

...there's no instance where we have recorded levels of heavy metal above the drinking water standard. EPA project manager Tom Mix - 1985;

EPA PUBLIC HEARING - IRON MOUNTAIN MINES

Dear Mr. Hutchens

This is in follow up to Mr. Arman's January 29, 2008 letter of introduction. As Mr. Arman has requested in his letter, EPA will transmit copies of all future "correspondence concerning the high density sludge or the acid mine drainage or matters relater thereto" to you as well as Mr. Arman.

Mr. Arman provided the following address and contact information:

Mr. John Hutchens

P.O. Box 182

Canyon , CA 94516

Phone: 925-878-9167

If this information is correct, there is no need to reply to this email.

Sincerely,

Rick Sugarek

2/25/2008

The Colbert Report Mon - Thurs 11:30pm / 10:30c
The Word - Priceless
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog</a> Video Archive

" Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensus rata sunt. " [You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.] Lord Coke

The Constitution in One Sentence

In a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

— Amendment 10

Call for Justice at Superfund Sites

EPA staff forced to ignore science

EPA Signs Agreement for State Voluntary Cleanup Program

EPA Said to Have Suppressed, Misclassified Records

Internal Audit Suggests EPA Complicit in Environmental Racism

Why the Environmental Protection Agency must be abolished

The Colbert Report Mon - Thurs 11:30pm / 10:30c
Colbert Report: 07007 Pt. 2
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The Fertilizer Institute: Water Works

For The Fertilizer Institute and its members, water issues will take center stage in 2011.

Getting a handle on the legislative outlook for 2011 requires first a look to the recent past. After the wild 2010 mid-term election, the dust is still settling in Washington, DC. In November, voters gave the Republicans a majority in the U.S. House of Representatives and allowed the Democrats to hold onto the majority by a slim margin in the Senate. In the House, Republicans won more than 60 seats.
As in past elections, being an incumbent was not much of a safety net. Three senior Democratic Committee Chairmen — Rep. John M. Spratt, Jr. (SC), the chairman of the House Budget Committee, Rep. Ike Skelton (MO), chairman of the House Armed Services Committee, and Rep. James L. Oberstar, chairman of the House Transportation and Infrastructure Committee, were all defeated.

In the Senate, Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, Nutrition and Forestry was defeated by Rep. John Boozman (R-AR). Republicans also gained seats in Florida, Illinois, Pennsylvania, Kentucky, Wisconsin, North Dakota and Alaska.

An 11th-hour effort was underway in the “lame duck” session of Congress to include S.1816 The Chesapeake Clean Water and Ecosystem Restoration Act, and in the potential Lands, Waters and Wildlife omnibus legislation. The fertilizer industry and the agriculture community should be aware that S.1816 would pose significant negative changes to the Clean Water Act.

Advocates of the bill are claiming that the tough measures found in S.1816 are justified based upon the results of the draft USDA “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region” showing the contributions of agriculture to the Bay. In order to address false claims such as these, The Fertilizer Institute ( TFI ), the Agricultural Retailers Association ( ARA ) and other members of the Agricultural Nutrient Policy Council ( ANPC ) recently asked LimnoTech , one of the nation's leading water sciences and environmental engineering consulting firms, to compare the assumptions and numbers found in the USDA study and EPA 's Total Maximum Daily Load (TMDL). The comparison revealed astounding differences between USDA and EPA data concerning pollutant loadings for the Chesapeake Bay. The technical conclusions reached by LimnoTech about the implications of the very different data used by USDA and EPA call into serious question the validity of EPA's scientific conclusions regarding the role of agriculture as a source of pollutants and the need for the overly aggressive measures now called for by EPA.

Water, Water Everywhere

Another water-related issue is coming from Washington — but this time from EPA. Partially in response to an environmental litigant's lawsuit, EPA has taken over the development of numeric nutrient criteria (NNC) for the state of Florida. The first of these were issued in November. Wisconsin, responding to pressures from EPA and the environmental community, is now adopting NNC for phosphorous. Kansas may very well be the next battleground for this issue and TFI currently estimates that approximately 44 states have NNC under development in one form or another. Most states' NNC work is in a holding pattern as states are all watching to see what EPA does with the NNC for Florida, under the reasonable assumption that the approaches/levels used there will be what EPA will accept from other states.

What are NNC and why do they matter? Nutrient criteria are part of the internal, technical workings of the Clean Water Act (CWA), within the general grouping of the CWA technical program called “Water Quality Standards” (WQS). The WQS program and the water quality criteria within it are the “guts” of Clean Water Act implementation.

Regulators use water quality criteria as one of the direct guides to allowable pollutant quantities in a National Pollutant Discharge Elimination System (NPDES), permit holder's discharge and to determine what is considered acceptable in discharges from non-point sources. Additionally, water quality criteria are used by regulators to judge if a water body contains too much of a specified pollutant and if it is unable to meet its “designated use,” thereby classifying it is as “impaired” under the CWA.

Once a water body is identified as “impaired” under the CWA, the TMDL program is triggered with its cascading requirements and issues, as is now unfolding in the Chesapeake Bay.

Nutrient criteria within the WQS can be classified as either narrative or numeric. An example of a narrative nutrient criteria might be “No phosphorous will be allowed in this stream at levels that will prevent desired levels of aquatic flora and fauna.”

Fighting Back

In early December, TFI filed a legal challenge to EPA's rule. The lawsuit was filed in the U.S. District Court for the Northern District of Florida Pensacola Division. In the complaint, the lawsuit contends that:
¦ EPA's Final Rule is unlawful and should be vacated because it establishes water quality criteria that ignore causation, regulate water bodies that are achieving their designated use and restrict nutrients that do not cause impairment.
¦ By using simple and overly broad statistical principles EPA's rule will classify a certain percentage of water bodies as impaired when they in fact are not.
¦ EPA's new criteria usurp Florida's statutory authority to develop standards and are fundamentally in conflict with Florida's existing efforts to implement narrative water quality standard for nutrients.
¦ EPA unlawfully ignored the requirements that water quality criteria be based on true biological impairment and instead established numeric criteria for nitrogen and phosphorus in water bodies where they would not actually cause such an imbalance.
¦ EPA's shortcut numeric criteria are not based on sound scientific rationale or scientifically defensible methods because they would unlawfully restrict nitrogen and phosphorus in lakes, streams and springs that are not impaired. In other instances, where the lakes, streams or springs are impaired, EPA's standards will unlawfully regulate nutrients that are not causing the impairment.
¦ EPA's regulation wrongly assumes that nitrogen and phosphorus levels above EPA's numeric criteria will cause algal growth and thus impairment.
¦ EPA has ignored its own Science Advisory Board and set nitrogen standards when in fact nitrogen is not limiting (and thus not responsible) for impairment in fresh water bodies.

A New Climate For Climate Change

The significant change in the makeup of the new Congress most likely mean that “cap-and-trade” style climate legislation is off the table — at least in the short term. As is the case with water issues, we are faced with a very active (and activist) EPA that is moving forward with several rules to control greenhouse gas emissions. In total, at least six separate rule-makings that could impact the fertilizer industry. While several of these rules are the subject of legal challenges from other potentially regulated industries, EPA has made it clear that it believes it has the authority to move forward and is doing so.

About the author:

Mathers is director, public affairs for The Fertilizer Institute, Washington, DC.

Karen Ross Appointed Secretary

Iron Mountain Mine congratulates Karen Ross on her appointment by Governor Brown as the next Secretary of the California Department of Food and Agriculture (CDFA). Her appointment comes at a critical time in terms of preparing to support California agriculture in addressing a changing climate. At CalCAN, we are looking forward to working with the new Secretary on this issue.
Karen Ross has a long tenure of promoting the economic and environmental sustainability of California agriculture. Ms. Ross served for many years as the President of the California Association of Winegrape Growers and a member of the State Food and Agriculture Board. She currently serves at the Chief of Staff for USDA Secretary Tom Vilsack.

According to Rich Rominger, “Governor Brown selected the best person for California Department of Food and Agriculture. Karen Ross is the leader we need to address the critical issues of agriculture, water, clean energy development and climate change.” Rominger was CDFA Secretary under then-Governor Brown from 1977 to 1982 and Deputy Secretary of USDA from 1993 to 2001.

California agriculture is $35 billion industry, covering a quarter of the state's land mass and providing nearly half of the country's fresh fruits, nuts and vegetables. Climate change scenarios suggest that in the coming years the industry will struggle with climate-related impacts such as water scarcity, extreme weather events, more intense and frequent floods and droughts, and rising temperatures. Resources, such as research, technical assistance for growers and financial incentives for on-farm conservation practices, are needed to support California agriculture in coping with a changing climate.

California agriculture is $35 billion industry, covering a quarter of the state's land mass and providing nearly half of the country's fresh fruits, nuts and vegetables.

OVERSIGHT, FORESIGHT, AND BACKSIGHT INITIATIVE

PUBLIC MEETING | TRUST

T.W. ARMAN, A SEAMAN'S WIDOW, THREE PRIVATES AND A TEAMSTER, TWO MINERS AND 360 ACRES OF LAND, &e

CONGRESS

View
Image

Patentee Name

State

County

Issue
Date

Land Office

Doc.
Nr.

Accession/
Serial Nr.

CAMDEN, CHARLES

CA

Shasta

5/1/1862

Marysville

85827

MW-0152-028

CAMDEN, CHARLES

CA

Shasta

5/1/1862

Marysville

87600

MW-0152-031

CAMDEN, CHARLES

CA

Shasta

5/1/1862

Marysville

93686

MW-0152-032

CAMDEN, CHARLES

CA

Shasta

5/1/1862

Marysville

96592

MW-0152-029

CAMDEN, CHARLES

CA

Shasta

5/1/1862

Marysville

99111

MW-0152-030

6. A certified copy of a judgment or an abstract thereof, recorded April 15, 1994 as Book 3157,
Page 517 of Official Records.
Court: Superior Court of the State of California, County of Shasta
Case No.: 104079
Debtor: Iron Mountain Mines, Inc., a California corporation, and Does 1-
20
Creditor: People of the State of California, ex rel. California Regional
Water Quality Control Board, Central Valley Region
Amount: $250,000.00, and any other amounts due thereunder.
The lien of the judgment has been extended as evidenced by the document recorded
March 31, 2004 as Instrument No. 2004-0017790 of Official Records.
7. The terms and provisions contained in the document entitled Notice of Lien Under
Comprehensive Environmental Response, Compensation & Liability Act of 1980, as Amended, 42
U.S.C. 9607(1) recorded May 11, 2000 as Instrument No. 2000-0016716 of Official Records.
8. A certified copy of a judgment or an abstract thereof, recorded August 08, 2000 as Instrument
No. 2000-0028302 of Official Records.
Court: Sacramento Superior Court
Case No.: 99AM06040
Debtor: Iron Mountain Mines, Inc., a California corporation
Creditor: RMC Lonestar, a California general partnership
Amount: $10,915.42, and any other amounts due thereunder.
9. The terms and provisions contained in the document entitled Memorandum of Joint Venture
Development and Operating Agreement recorded January 28, 2009 as Instrument No. 2009-
0002640 of Official Records.
10. Rights of parties in possession.
11. Additional matters, if any, following review by the Company’s Waterways and Boundaries
Underwriters.

F. WITH RESPECT TO A TRUST:
a. A certification pursuant to Section 18500.5 of the California Probate Code in a
form satisfactory to the Company.
b. Copies of those excerpts from the original trust documents and amendments
thereto which designate the trustee and confer upon the trustee the power to act
in the pending transaction.
c. Other requirements which the Company may impose following its review of the
material require herein and other information which the Company may require.
G. WITH RESPECT TO INDIVIDUALS:
a. A statement of information.

REMISSION

The year 2010 marked the 160th anniversary of Shasta County, the 30 th anniversary of Superfund, and the 18 th anniversary of the National Law Journal's work that found inequitable enforcement of environmental laws by race and income.

Expected outcomes:

Rigorous and thorough analysis and discussion of environmental justice issues from diverse points of view.

Understanding of EJ failure and how to abolish it..

Commitment to EJ from agencies, business and industry, academic institutions and other entities.

Land Use Planning; Public Participation in Decision Making; EJ in Indian Country; EJ in Mining Territory

Policies on Key Issues (and measures taken to address them), such as but not limited to:

Meaningful involvement of communities: Conference is committed to meaningful involvement of affected community representatives. All committees are open to their participation and the conference will actively reach out to affected communities. This outreach effort includes regular conference calls with affected communities seeking their participation on various work committees, views, advice and recommendations for the conference.

Corporate Participation and fundraising: Conference is committed to constructively engaging members of the corporate sector for financial support and active participation in the conference discussions. All committees are open to corporate participation and the conference will actively reach out to business and industry for participation on various work committees, views, advice and recommendations for the conference.

Transparency : The planning committee will be as transparent with respect to groups contributing to the conference. Conference contributors will be named in conference materials and included on the conference website. No financial contribution will determine the discussion or subject matters at the conference.

DISCOVERIES! Geißler, L. & Seifert, Th. (2010): The son of Mother Lode? State and perspectives of the gold deposit research in the French Gulch-Deadwood district, Klamath Mountains, USA. – International Forum-Competition of Young Researchers “Topical Issues of Subsoil Usages”, 21.-23. April 2010, St. Petersburg State Mining Institute. LOCATION

A Constitutional Convention Can Rein in Washington

BY JAMES M. LEMUNYON - THE WALL STREET JOURNAL - OPINION

The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.

The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.

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

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

Under the U.S. Constitution, Congress has the power to make criminal only four types of conduct: treason, counterfeiting, piracies and felonies on the high seas, and offenses against the laws of nations.

The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty , to throw off such Government"

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

“I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.”   – Thomas Jefferson

“WHEN ALL GOVERNMENT, DOMESTIC AND FOREIGN, IN LITTLE AS IN GREAT THINGS, SHALL BE DRAWN TO WASHINGTON AS THE CENTER OF POWER, IT WILL RENDER POWERLESS THE CHECKS PROVIDED OF ONE GOVERNMENT ON ANOTHER AND WILL BECOME AS VENAL AND OPPRESSIVE AS THE GOVERNMENT FROM WHICH WE SEPARATED.” – Thomas Jefferson

Congress has the right to make any law that is ‘necessary and proper' for the execution of its enumerated powers (Art. I, Sec. 8, Cl. 18).

CERCLA is a coercive intolerable act, "impolitic, unjust, and cruel,"

We are entitled to life, liberty, and property, and we have never ceded to any sovereign power whatever, a right to dispose of either without our consent.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

You have obstructed the Administration of Justice, by refusing your Assent to the constitutional limitations of Federal Judiciary Powers.

You have erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out our substance.

You have kept among us, in times of peace, a Standing Army without our Consent.

You have combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving your Assent to their Acts of pretended Legislation:

You have abdicated Government here, by declaring us out of your Protection and waging War against us.

For depriving us of the benefits of Trial by Jury:

You have plundered our Trusts, ravaged our Lands, burnt our Township, and destroyed the lives of our people.

In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Judge, whose character is thus marked by every act which may define a Tyrant, is unfit to be the Judge of a free people.

The sole excuse for 30 years of piracy, extortion, despotism, tyranny, and oppression against Mr. T.W. Arman is the cost of dilution water from Shasta dam during droughts for the protection of the juvenile fish hatched and propogated in the artificial (i.e. manmade) Keswick lake.

Rather than allow the naturally occuring minerals to dissolve in stormwater runoff as it has for hundreds of thousands of years, the EPA chose to make an acutely toxic sludge and dispose it in a shoddily constructed disposal pit on top of the old brick flat open pit mine at Iron Mountain. The disposal pit has failed and the drainage is no longer recovered for treatment. It is unknown exactly where it drains to now.

Iron Mountain has accumulated over a billion pounds of this sludge. Despite constant efforts to initiate a recycling and reclamation plan, the EPA has defied every effort to implement an appropriate common sense approach to a remedy for this problem.

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

Thomas A. Bloomfield - EPA Region 9
As the assistant regional counsel for Region 9 of the U.S. Environmental Protection Agency (EPA), Thomas A. Bloomfield brokered a $1 billion settlement with the former owner of Iron Mountain Mine near Redding. The settlement is one of the largest in the history of both federal and California environmental protection programs and was made possible by an innovative insurance-based financing program.

In 1983 the EPA placed Iron Mountain on its Superfund list of the nation's most dangerous toxic sites. Litigation was brought by state and federal officials against the owner of the mine, formerly Rhone-Poulenc, now Aventis CropSciences USA, a chemical, pharmaceutical, and biotechnology company, for past and future cleanup costs.

The final settlement negotiated by Bloomfield sets up a finance program to fund a treatment plant that will process the contaminated runoff. The key piece of the deal is an insurance policy that will be purchased by the former owner of the mine and will pay out an estimated $200 million over 30 years for cleanup costs and will cover an additional $100 million if necessary, along with additional payouts to the EPA and state and federal trustee agencies. In 2030 the policy will pay a lump sum of $514 million to the state and federal government to continue the cleanup.

Michael Hingerty, deputy branch chief for Region 9, worked on the case from 1987 until turning it over to Bloomfield in 1996. Tim Gallagher of Gallagher & Gallagher in Los Angeles also contributed significantly to the settlement.

Superfund at 30 - toxic waste cleanups drag on

Monopoly

Section 2 of the Act forbade monopoly . In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.

CFTC Postpones Derivatives Vote

Commodities Futures Trading Commission

Gary Gensler

U.S. regulators have postponed a vote on new governance rules for derivatives clearinghouses and trading platforms, The Wall Street Journal reports. The rules were scheduled for a vote by the Commodities Futures Trading Commission on January 13.
The CFTC had released a proposal in October to curb the ownership stakes that banks and other swaps dealers can hold in clearinghouses, exchanges and swap-execution facilities. CFTC Chairman Gary Gensler had pulled a vote on draft rules to restrict speculation in commodities markets on December 16.

Click here for the story from The Wall Street Journal.

Click here for additional coverage from Bloomberg

Commodity Speculation Divides CFTC as Deadline Looms
January 13, 2011 By Asjylyn Loder
(Adds CFTC vote in fifth paragraph, statement from CFTC's Chilton in 11th paragraph, Dunn in 18th, Sommers in 20th.)

Jan. 13 (Bloomberg) -- Curbing speculation in raw materials including oil, gold and wheat has touched off a battle at the top U.S. commodities regulator with a legal deadline to rein in traders just four days away.

The Commodity Futures Trading Commission is divided over how to meet the requirements of the Dodd-Frank financial overhaul that became law last year. A lack of data on the $583 trillion global over-the-counter derivatives market has complicated the agency's efforts to limit speculation this month, as directed by the law.

Commissioner Scott O'Malia said today fellow commissioners are attempting a “Trojan horse” move that would impose limits without proper debate. Chairman Gary Gensler last month directed the agency's staff to gather data from firms that exceed certain thresholds, while Commissioner Bart Chilton advocated “position points” beyond which the agency might push traders to reduce or freeze their holdings.

“Much of the pressure to immediately implement position limits/'position points' comes from those who advocate the need for price controls,” O'Malia, a Republican, said in a statement. “It is not the role of the commission to control prices.”

The CFTC today voted 4-1 to propose rules that would limit the number of contracts a single firm can hold. The public has 60 days to critique the caps. O'Malia said he's “very skeptical” about the proposal, though he voted to put it out for comment. No date is for a final vote on the rules.

Legal Directive

The Dodd-Frank Act gave the CFTC until Jan. 17 to curb speculation in the energy and metals markets and until April in agricultural commodities. Last month, Gensler, a Democrat, said the commission wouldn't meet the deadline because it doesn't yet have sufficient data. The commission delayed a vote on the proposal at a Dec. 16 public meeting.

Today he responded to O'Malia's statement, disputing the notion that he and Chilton, also a Democrat, were trying to regulate prices.

“The CFTC does not set or regulate prices,” Gensler said in a statement. “Rather, the commission is directed to ensure that commodity markets are fair and orderly to protect the American public.”

More Data

He said gathering additional information will help the commission understand the role of large traders in the market and how proposed limits may affect them. “These levels, or points, are the positions at which CFTC staff will brief the commission under its existing authority,” he said.

The plan under discussion would limit traders to 25 percent of deliverable supply in the contract nearest to expiration, followed by an all-month ceiling of 10 percent of open interest up to the first 25,000 contracts and 2.5 percent thereafter.

Chilton said the commission “should have proposed much earlier in a way that would have implemented the provision as Congress intended. That's not happening.”

Regulators and lawmakers are attempting to rein in commodity speculation amid concern that investors contributed to oil reaching the record high of $147.27 a barrel in 2008. The CFTC received hundreds of public comments on position limits and held at least 75 meetings on the subject since July, according to its website.

“I do not believe that the absence of position limits has had any impact on prices in the past,” O'Malia said. “And I do not believe that setting them now will be effective in preventing a barrel of oil from going over $100 per barrel.”

CFTC Oversight

The financial overhaul expanded the CFTC's authority to the over-the-counter derivatives market for the first time since swaps were introduced 30 years ago. Before the law passed, traders could buy futures on regulated exchanges or they could privately negotiate for unregulated, look-alike contracts.

The commission in October proposed a rule to gather information on the previously unregulated swaps. The 60-day public comment period closed in December, and the agency hasn't approved the rule.

Without that data, the agency can't impose or enforce aggregate position limits across exchange-traded futures and economically equivalent derivatives, Gensler said last month.

The CFTC limits would impose a uniform set of rules across exchanges and the over-the-counter market, replacing a patchwork of inconsistent restrictions for different venues and commodities. Trading in some agricultural contracts is already capped, while there are few controls on speculation in energy and precious metals.

Dunn Skepticism

“To date, CFTC staff has been unable to find any reliable economic analysis to support either the contention that excessive speculation is affecting the markets we regulate, or that position limits will prevent excessive speculation,” said Commissioner Michael Dunn.

At the Dec. 16 meeting, Gensler directed commission staff to gather information on the derivatives positions of any trader that exceeded 10 percent of open interest in exchange-traded futures or similarly regulated contracts up to 25,000 contracts, and 2.5 percent thereafter.

Commissioner Jill Sommers, who cast the only vote against publishing the proposal, said the commission should wait for a complete analysis of the swaps market before moving ahead on limits.

Chilton Plan

Chilton's proposal is similar to accountability levels now policed by regulated exchanges like the New York Mercantile Exchange and the Chicago Board of Trade. Traders that exceed those levels may come under increased scrutiny, and be asked to freeze or reduce their bets. The exchanges also impose restrictions in the last few days before a contract expires.

O'Malia said those actions will create uncertainty about limits, chase traders off of the transparent exchanges and open the CFTC up to legal challenge because the public wasn't given proper notice or opportunity to comment.

The financial overhaul, named for its primary authors, Democratic former Senator Christopher Dodd of Connecticut and Congressman Barney Frank of Massachusetts, aims to stem systemic risk by requiring most interest-rate, credit-default and other swaps be processed by clearinghouses after being traded on exchanges or swap-execution facilities.

--With assistance from Silla Brush in Washington. Editors: Dan Stets, Charlotte Porter

To contact the reporter on this story: Asjylyn Loder in New York at aloder@bloomberg.net.

To contact the editor responsible for this story: Dan Stets at dstets@bloomberg.net.

Internal Audit Suggests EPA Complicit in Environmental Racism

by Catherine Komp

Environmentalists, civil rights advocates and even federal auditors say the US government is ignoring its duty to protect low-income people and people of color from harmful pollution in their communities.

Last month, the Environmental Protection Agency's Office of the Inspector General found the Agency does not know if its policies and programs are negatively affecting poor people because it has not conducted proper "environmental justice" reviews.

"The term of ‘environmental justice' is kind of a cleaned-up term," said Felicia Eaves, campaign organizer with the grassroots group Women's Voices for the Earth. "[The term] actually started out as ‘environmental racism.'"

BRC Commends 112th Congress for Addressing TMR Related Closures

by Jon Crowley on 13/01/11 at 12:36 pm

WASHINGTON DC (January 7)–A national trail-based recreation group commends legislation that was introduced today to clarify the implementation and enforcement of Travel Management in California. This bill was introduced by Congressman Wally Herger and is cosponsored by Congressmen Tom McClintock, Kevin McCarthy, and Dan Lungren.

This bill will restrict funds for Forest Service implementation of Subpart B of its Travel Management Rule (TMR) until the agency has performed the project-level review under the Rule. The bill also addresses the very contentious issue of the Forest Service banning OHV use on dirt-covered and roughly graded logging roads in rural sections of the state.

Don Amador, Western Representative for the BlueRibbon Coalition, states, “I feel this legislation has been proposed in direct response to complaints from his constituents who have been locked out of federal timber lands by the misapplication of the Travel Management Rule by government agents.”

“This is the type of legislation that outdoor voters asked for in the last election. Congress has a duty to defend the public's right to access federal lands in a responsible manner,” Amador concludes.
Link to Congressman Herger TMR Bill:
http://www.sharetrails.org/uploads/Herger_TMR_Bill_jan.7.11.pdf

Facilities Across the Southeast Ordered to Stop Discharging and Comply with Clean Water Act

Due Diligence, All Appropriate Inquiry, Environmental Site Assessment, and Brownsfield Site Information

Contact Information: Davina Marraccini, (404) 562-8293, marraccini.davina@epa.gov **

(ATLANTA - Jan. 13, 2011) The U.S. Environmental Protection Agency (EPA) issued Administrative Orders (AOs) against seven entities in North Carolina, Tennessee, Kentucky and South Carolina during the last quarter of 2010 for violations of the Clean Water Act (CWA).

“Controlling water pollution sources is key to protecting waterways across the Southeast and the health of all people who depend on them,” said Gwendolyn Keyes Fleming, EPA Region 4 Regional Administrator.

Three entities were cited for alleged stormwater-related violations of the CWA. Polluted stormwater runoff is a leading cause of impairment to the nearly 40 percent of surveyed U.S. water bodies which do not meet water quality standards. Over land or via storm sewer systems, polluted runoff is discharged, often untreated, directly into local water bodies. The entities cited and their associated violations include:

. YDV, Inc., for violations at the Compass Pointe Phases 2, 3 and 11 sites in Leland, N.C.;
. Marion Retail Investments, LLC, for violations at its Grandview Station construction site in Marion, N.C.;
. Shelby County Schools, for violations at the Shelby County Administration Building in Arlington, Tenn.

EPA issued AOs requiring the violators to conduct a variety of remediation activities, including revising and implementing their Construction Pollution Prevention Plans and Erosion and Sedimentation Control Plans; installing and maintaining Best Management Practices; conducting adequate self-inspections; ceasing sediment discharges; and addressing areas where sediment had been discharged.

The City of Oak Ridge, Tenn., was cited for unauthorized discharges of sewage from the wastewater collection and transmission system. Sanitary sewer overflows (SSOs) like these pose a significant threat to public health and the environment, and remain a leading cause of water quality impairment. SSOs contain raw sewage and have high concentrations of bacteria from fecal contamination, as well as disease-causing pathogens and viruses. Besides being illegal under the CWA, the SSOs also constitute a failure to comply with the requirements of the utility's National Pollutant Discharge Elimination System permit. EPA issued an AO requiring the utility to address wet weather capacity-related issues in the sewer system. In addition, the order requires the development of management, operation and maintenance programs.

Licking River Resources, Inc. and Clintwood Elkhorn Mining Company were each cited for unauthorized discharges of wastewater associated with their surface mining and/or coal processing and preparation plants in West Liberty and Phyllis, Ky., respectively. The Mullins Branch Preparation Plant in West Liberty discharges wastewater into Mullins Branch, while the Miller's Creek Mine Plant in Phyllis discharges wastewater into Miller's Creek. Under the CWA, such discharges require a National Pollutant Discharge Elimination System, and EPA has ordered each facility to cease all unpermitted discharges into waters of the United States.

EPA issued an AO for violations of the Concentrated Animal Feeding Operations requirements of the CWA at a dairy operation known as Lee Mayer #1 in Newberry, S.C. The order requires the owner, Mayer Farms, Inc., to cease the discharge of pollutants from the facility and come into compliance with the land-application requirements in accordance with its Waste Management Plan and permit. The AO also requires Mayer Farms to provide quarterly sampling reports for its waste, and for its crops and harvest plants to determine nutrient levels.

Congress enacted the Clean Water Act (CWA) in 1972 to protect the nation's rivers, lakes and stream, as well as some of the more fragile and vital wetland habitats. The entities cited violated the CWA by failing to meet the requirements of their National Pollutant Discharge Elimination System (NPDES) permits, and subsequently causing point source discharges. Pollutants of concern include nutrients, sediment, oil and grease, chemicals and metals. When left uncontrolled, water pollution can deplete needed oxygen and/or otherwise result in the destruction of aquatic habitats, as well as the fish and wildlife that depend on them. Water pollution can also contaminate food, drinking water supplies and recreational waterways, and thereby pose a threat to public health.

You are subscribed to Region 4: Water News Releases for U.S. Environmental Protection Agency. This information has recently been updated, and is now available [ http://service.govdelivery.com/service/view.html?code=USAEPA_235 ].

Tempers Flare at Environmental Justice Conference
Fair Use Statement Source: ENS

Tempers Flare at Environmental Justice Conference, By Brian Hansen

ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.

District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
consent decree between the federal government and a settling PRP.
United States v. Exxon Mobil Corp., No. 08-124

District Court Allows PRP to Amend Claim 2 Years after Atlantic Research

On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),

Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation's recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff's parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).

Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).

Natural Resource Damage Claims Insufficient for Federal
Jurisdiction
On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory's common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).

Destruction of Samples Leads to Preclusion of Contamination Evidence
On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).

“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.

Excercising your constitutional right cannot be converted into a crime or have sanctions levered against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.]

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]

There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]

"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).

Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974).

In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

State Capacity Building

Objective - To fulfill the mandated objectives of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA) of 1986, as amended, in coordination with Agency for Toxic Substances and Disease Registry (ATSDR), by assisting public health agencies to build capacity to conduct (1) Health consultations, (2) public health assessments, (3) exposure investigations, (4) community involvement, (5) health education, and (6) public health studies.

Agency: Department of Health and Human Services

Office: Not applicable.

Authorization

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, Sections 104(i)(1)(E), (4), (6), (7), (9), (14) and (15), as amended; Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9604; Resource Conservation and Recovery Act, Section 3109(b) and (c), as amended; Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6939 (b) and (c).

Uses and Use Restrictions

The uses are to strengthen State health agency environmental health programs.

Services include public health assessments, consultations, exposure investigations, health education, and follow-up health investigations/studies.

Funds may be expended for reasonable program purposes, such as personnel, travel, supplies and services.

Funds for contractual services may be requested.

However, the awardee, as the direct and primary recipient of PHS grant funds, must perform a substantive role in carrying out project activities and not merely serve as a conduit for an award to another party or provide funds to an ineligible party.

Equipment may be purchased with cooperative agreement funds; however, the equipment must meet applicable Federal requirements.

These funds may not be used by the recipient to conduct activities at any Federal site where the State is a party to litigation at the site.

Eligibility Requirements

Applicant Eligibility

Eligible applicants are the official public health agencies of States or their bona fide agents or instrumentalities, to include the District of Columbia, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands, the Federated States of Micronesia, Guam, the Northern Marina Islands, the Republic of the Marshall Islands, and the Republic of Palau, and the Federally- recognized Indian tribal governments.

Beneficiary Eligibility

Beneficiaries are individuals and/or families living in communities near or in proximity of Superfund sites.

Credentials/Documentation

Costs will be determined in accordance with OMB Circular No. A-87 for State and local governments.

Aplication and Award Process

Preapplication Coordination

No preapplication is required.

This program is eligible for coverage under E.O.

12372, "Intergovernmental Review of Federal Programs".

An applicant should contact the office or Official designated as the single point of contact in his or her State for more information on the process the State requires to be followed in applying for assistance, if the State has selected the program for review.

Application Procedures

Applicants must use application Form PHS 5161-1. Application packets are available from: Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Rd,. Room 3000, Mailstop K-75, Atlanta, GA 30341. By formal agreement, the CDC Procurement and Grants Office will act for and on behalf of ATSDR on this matter.

Award Procedures

The Assistant Administrator, ATSDR, determines applications to be approved and the priorities for funding. When an application is approved for funding, the Grants Management Officer, CDC, acting as the agent for ATSDR, will prepare a Notice of Award.

Deadlines

Contact the Headquarters Office identified below for application deadlines.

Range of Approval/Disapproval Time

Approximately 60 to 90 days.

Appeals

None.

Renewals

Awards are made for project periods from one to five years. Renewal awards cannot be made beyond the project period without competition.

Assistance Considerations

Formula and Matching Requirements

This program has no statutory formula.

Length and Time Phasing of Assistance

The annual awards are for a 12 month budget period within a three to five year project period. Noncompetitive continuation awards within the project period are made on the basis of satisfactory progress and availability of funds.

Post Assistance Requirements

Reports

Annual progress and financial status reports are required no later than 90 days after the end of each budget period.

An original and two copies of the final financial status and performance reports are due no later than 90 days after the end of the project period.

Audits

In accordance with the provisions of OMB Circular No. A- 133 (Revised, June 27, 2003), "Audits of States, Local Governments, and Nonprofit Organizations," nonfederal entities that expend financial assistance of $500,000 or more in Federal awards will have a single or a program-specific audit conducted for that year. Nonfederal entities that expend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in Circular No. A-133.

Records

Detailed and accurate records of travel expenditures, personnel hours and all other costs will be retained for at least 10 years in accordance with EPS's "Superfund Financial Management and Recordkeeping Guidance for Federal Agencies". Such documents may be required to provide the basis of cost recovery actions or other litigation. Additionally, this documentation must be available for audit or verification upon request of the office of Inspector General.

Financial Information

Account Identification

75-8252-0-1-551.

Obigations

(Grants) FY 07 $10,894,064; FY 08 $12,681,515; and FY 09 est $11,500,000.

Range and Average of Financial Assistance

$150,627 to $700,000; $350,000.

Program Accomplishments

In fiscal year 2003, there were a total of 33 new competitive awards. It is anticipated that there will be 33 noncompetitive continuation awards in fiscal year 2004 and 2005.

Regulations, Guidelines, and Literature

Regulations governing this program are set forth in 45 CFR 92 and 40 CFR 35, Subpart O. Guidelines are available in the application kits. PHS Grants Policy Statement (Revised, April 1, 1994).

Information Contacts

Regional or Local Office

Not applicable.

Headquarters Office

Ms. Joan Flesner, Public Health Analyst, Division of Health Assessment and Consultation, Agency for Toxic Substances and Disease Registry, 1600 Clifton Road, NE., Mailstop F-59, Atlanta, Georgia 30333. Telephone: (770) 488-0739 Fax: (770) 488-1544. E-mail address: JFlesner@cdc.gov. Grants Management Contact: Mildred Garner, Grants Management Officer, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341. Telephone: (770) 488-2745. Fax: (770) 488-2777.

Website Address

http://www.atsdr.cdc.gov.

Related Programs

None.

Examples of Funded Projects

States conduct public health evaluations on National Priorities List (NPL) sites, sites that ATSDR have been petitioned to assess, Superfund Accelerated Cleanup Model (SACM) sites, and other Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites.

Criteria for Selecting Proposals

Applications for core activities only were reviewed and evaluated based on the following criteria: (1) Proposed Program: (a) Merit scientific and technical merit of the proposed project to perform public health assessments, consultations, exposure investigations, health education and public health studies consistent with ATSDR guidance and in a timely manner. Applicant's ability to evaluate the public health impact of hazardous waste sites using health, environmental, and demographic data, and health-related concerns from the local community. (b) Requirements Applicant's understanding of the requirements, objectives, and complexities of the interactions required for a successful program. c) Collaboration Applicant's plan to collaborate with political and private subdivisions of Federal, State, and local health and environmental agencies and community groups to obtain information needed for evaluating the public health impact of hazardous waste sites, disseminate results of findings, and prevent exposure if identified. (2) Program Personnel: The principal investigator or project director and his/her ability to devote time and effort to provide effective leadership, and the qualifications of the support staff. (3) Applicant Capability: Adequacy and commitment of institutional resources, facilities, space, and equipment necessary for conducting the project are available and sufficient. (4) Program Budget: Extent to which the budget is reasonable, clearly justified, and consistent with intended use of funds. The priority order for funding cooperative agreements was as follows: (a) Number of proposed and/or listed National Priority List (NPL) sites (Federal and nonfederal) based on the most current EPA list, (b) number of Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites (Federal and nonfederal) based on the most current EPA list; (c) applicants who applied for both Core Activities and optional Activities; and (d) geographic distribution across the United States. (5) Human Subjects: Applicant's plan for adequate protection of human subjects. Applications for conducting Core Plus Optional Activities were reviewed and evaluated based on the following criteria: Proposed Program: In addition to the criteria outlined above for Core Activities, the applicant had to indicate an understanding of and capability for conducting human health studies as contained in the proposed site-specific protocol which had to include: (a) The approach, feasibility, adequacy, and rationale for the proposed study design, (b) the technical merit of the proposed study, (c) the proposed timeline, including measurable objectives, (d) proposed method for disseminating the results of the study.

Active Grants
for this program

ATSDR?s Partnership to Promote Localized Efforts to Reduce Environmental Exposure (APPLETREE) Program
Eligible applicants that can apply for this funding opportunity are listed below:
? Federally recognized or state-recognized American Indian/Alaska Native tribal governments
? State health departments or their Bona Fide Agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau)

A Bona Fide Agent is an agency/organization identified by the state as eligible to submit an application under the state eligibility in lieu of a state application.

If applying as a bona fide agent of a state or local government, a letter from the state or local government as documentation of the status is required.

Attach with ?Other Attachment Forms? when submitting via www.grants.gov.

ATSDR?s regulatory authority cited by the CERCLA limits the eligible applicants that can apply for this funding opportunity.

Full Opportunity Web Address:

Contact:
Carolyn Wilburn Procurement and Grants Office Phone 770-488-2700

Agency Email Description:
PGOTIM@cdc.gov

Agency Email:
PGOTIM@cdc.gov

Date Posted:
2010-10-22

Application Due Date:
2010-12-22

Archive Date:
2011-01-21

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EPA encourages regular testing

Moral hazard occurs when a party insulated from risk behaves differently than it would behave if it were fully exposed to the risk.

Moral hazard arises because an individual or institution does not take the full consequences and responsibilities of its actions, and therefore has a tendency to act less carefully than it otherwise would, leaving another party to hold some responsibility for the consequences of those actions. For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.

Economists explain moral hazard as a special case of information asymmetry , a situation in which one party in a transaction has more information than another. In particular, moral hazard may occur if a party that is insulated from risk has more information about its actions and intentions than the party paying for the negative consequences of the risk. More broadly, moral hazard occurs when the party with more information about its actions or intentions has a tendency or incentive to behave inappropriately from the perspective of the party with less information.

Moral hazard also arises in a principal-agent problem , where one party, called an agent, acts on behalf of another party, called the principal. The agent usually has more information about his or her actions or intentions than the principal does, because the principal usually cannot completely monitor the agent. The agent may have an incentive to act inappropriately (from the viewpoint of the principal) if the interests of the agent and the principal are not aligned.

such statutes are to be construed broadly "to effectuate the regulatory purpose."
United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991)

Superfund site in San Francisco proves toxic for Navy, neighbors
By Monica Jensen SF Public Press/Newsdesk.org — Jan 10 2011 - 2:52pm
In December, activists met with officials from the federal Environmental Protection Agency to tour the shipyard and adjacent public facilities built on or near land contaminated with PCBs and other toxins, such as a school basketball court downwind from an excavation of soil laden with naturally occurring asbestos.

Activists also said that the Navy's unilateral dissolution of the Restoration Advisory Board in December 2009 enabled it to “fast track” major decisions while disregarding community concerns. The biggest decision was the approval of the environmental impact report for the second phase of a redevelopment plan for the neighborhood that will ultimately bring 10,500 homes to the area.

A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.

The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.

Community involvement

Navy records described the advisory board as “unproductive,” and an EPA spokesman said the Navy's new “community involvement plan,” due to be released sometime in the next two months, will reboot community engagement.

Western Governors Association Conference

States' leaders say Endangered Species Act 'nonsensical,' hurts business and farming

The Endangered Species Act is a “nonsensical” policy that hurts businesses, property owners and farmers to protect animals and plants that may not be at risk , a panel of Democratic and Republican governors from throughout the West said Wednesday.

The governors complained of having their hands tied by federal policy as animal populations described as thriving but listed as endangered ravage private ranches, state parks and golf courses. Wildlife advocates say species that have thrived under the law's protection might again be threatened if taken off the list.

“The frustration level is reaching the breaking point in many levels because of this act,” said Utah Gov. Gary R. Herbert. “It's nonsensical.”

The Republican governor griped about swarms of endangered prairie dogs digging into golf courses. “They have become so domesticated, they are just a pain,” he said.

The discussion about overhauling the Endangered Species Act came on the second day of a two-day conference of the Western Governors Association. State executives from 19 states, plus the U.S. territories of Guam, American Samoa and the Northern Mariana Islands, were invited to attend.

Federal environmental officials acknowledged the law's challenges and slow-paced evolution, but largely aimed to rebut complaints and praise a conservation policy that seeks to protect nearly 2,000 species of birds, insects, fish, mammals, flowers and trees.

“Does the act always work perfectly? No,” said Eileen Sobeck, deputy assistant secretary of Fish, Wildlife and Parks. “Do the successes under the act outnumber the problems? I think they do.”

With its plentiful plains and rich wildlife, endangered species protections remain a testy issue in the West.

Hunters and ranchers, a powerful constituency in the Mountain West, have called for delisting recovering populations of certain species such as gray wolves and grizzlies. They contend that the federal policy affects the value and sovereignty of their land and threatens livestock. Western governors insist states, not federal regulators, should have authority over native species that affect local habitats and create business hurdles.

“We are pretty good at managing our wildlife,” Gov. Brian Schweitzer of Montana said.

Montana, Wyoming and Idaho have been in negotiations with the federal Interior Department to remove gray wolves from the endangered species in recent weeks, but talks have since stalled.

The region's 1,700 wolves lost their endangered status in Montana and Idaho in 2009, but were returned to the endangered list this year after a lawsuit brought by environmentalists.

Schweitzer, a Democrat, said that the gray wolf population in the West has fully recovered and should not be on the list, but federal regulators have been reluctant to reconsider the endangered designation.

“The Endangered Species Act is the Hotel California,” he told The Associated Press. “You can check in, but you can never leave.”

Schweitzer said rural states do not have enough clout in Congress to successfully lobby for the delisting of wolves under the Endangered Species Act, and he blasted federal officials for making the process so bureaucratic.

Idaho Gov. C. L. “Butch” Otter said the law has pitted business owners against government enforcers. The Republican suggested the federal government instead encourage land owners to protect endangered species on private land through financial rewards.

“The Endangered Species Act is broken, it's bankrupt, it's a fraud now,” he said.

The authorities have unanimously recommended this arrangement for those seeking to establish a good government.

From Charles –Louis de Secondat, the Baron de Montesquieu:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

From the Greek historian, Polybius:

Lycurgus…did not make his constitution simple and uniform, but united in it all the good and distinctive features of the best governments, so that none of the principles should grow unduly and be perverted into its allied evil, but that the force of being neutralized by the that of the others, neither of them should prevail and outbalance another, but that the constitution should remain for long in a state of equilibrium like a well-trimmed boat….

And finally, from the father of our own constitution, James Madison:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, hat the members of each should have as little agency as possible in the appointment of the members of the others.

Next, we turn to the heart chord, that is, the essential oil that is added to the head chord as the next step in creating the most pleasing government. That element is federalism . Again, we turn to the leading lights of political science.

Once again, from Montesquieu:

This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body,

and:

A republic of this kind, able to withstand an external force, may support itself without any internal corruption. The form of this society prevents all manner of inconveniencies.

Scottish Enlightenment philosopher David Hume agrees with the notion that a federal system would prevent the public interest from being attacked by factions united by “intrigue, prejudice or passion.” States, the smaller republics, would retain most power while granting to the central authority only those limited and specific powers necessary to protect the whole of society.

In the Federalist Papers , Alexander Hamilton supports the American expression of this timeless principle:

The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.

And his Federalist Papers collaborator, James Madison, cogently crystallized the point this way:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

Finally, if the perfume is to be long-lasting and memorable, the base chord must be added to the blend. Without this final ingredient, the scent would quickly dissipate and linger on only in memory.

The foundational additive in the enduring fragrance of American liberty is popular sovereignty . We, the people, are the ultimate and natural authority in our republic and it is only through our voluntary accession that government has any power whatsoever.

John Locke, whose powerful influence was felt by many of our own Founding Fathers and the documents they crafted to create our government, wrote in his Two Treatises on Government :

Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent…. (emphasis in the original)

Again, from the illustrious Scot, David Hume:

When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could at first associate them together and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion.

And, appropriately, the last word on the fundamental nature of the principle of popular sovereignty is from James Madison:

We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people;

and finally,

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived…

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

In Dalliba v. Riggs, 7 Ida. 779, 82 Pac. 107, it was laid down that while a court of equity can appoint a receiver to perfect and preserve mining property, it “ has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and while it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property, to the prejudice and loss of the holders of prior recorded liens on the same property” (82 Pac. At pp. 108-109). In that case the receiver appeared to have carried on the mining operations without any order of court directing him to do so and with reckless extravagance, and in addition was shown not only not to have kept accurate accounts but also to have made in the account filed “many charges against the estate where no charge whatever should have been made and none in fact existed.” The court accordingly denied the receiver any allowance for his own time or services and any allowance for attorney's fees. - JUSTICE BRANNON

Washington Post: Ex-Park Police Chief Could Get Old Job Back
Today

Summary : Yesterday, the U.S. Merit Systems Protection Board (MSPB) ordered the National Park Service to reinstate whistleblower Teresa Chambers as Chief of the U.S. Park Police. Chambers' case garnered national attention when she was removed by the Bush administration in 2004 after telling the Washington Post that "traffic accidents had increased along the Baltimore-Washington Parkway because two, rather than the recommended four, officers were on patrol," as well as that more officers were needed to safeguard the country's national parks. Whistleblowers and members of the public from across the country responded by voicing their support for Chambers.

Throughout her ordeal, Chief Chambers' representation has been led by Public Employees for Environmental Responsibility (PEER) and its Senior Counsel Paula Dinerstein. GAP Senior Counsel Richard Condit and attorney Mick Harrison have also been part of Chief Chambers' legal team throughout her efforts to challenge her unlawful termination. The fifty-three page ruling by the MSPB is a tremendous victory for federal employee whistleblowers. Chambers is now due over six years of back pay, as well as reimbursements for costs and legal fees.

Related Articles : CNN , WTOP

Fair Warning: Who Killed Whistleblower Bill? Hunt Is on for Mystery Senator
Today

Summary : This article highlights GAP and On The Media's effort to find out which senator used a secret hold to kill the Whistleblower Protection Enhancement Act just before Congress adjourned in December.

So far, 23 senators have stated that they did not place the secret hold. Help us continue to narrow it down by calling or emailing your senators .

The New York Times: Labor Board Overturns Vote by Sandwich Shop Workers
January 11, 2011

Summary : An October vote that resulted in the defeat of a unionization effort of a Jimmy John's sandwich shop franchise in Minneapolis has been overturned. Charges of intimidation tactics (that were made against the owner) led to an investigation by the National Labor Relations Board, which approved a settlement Monday that allows for another unionization vote.

GAP Fellow Sarah Damian blogs about the renewed effort and its impact on food integrity.

NPR: In Oil Drilling Reform, A Call For Science And Safety
Today

Summary : The final report by the White House oil spill commission, released yesterday, recommends reforms in both the oil industry and government agencies. The report calls attention to the need for better scientific research and safety measures, including a new industry-funded safety institute, that, "among other things, would figure out better ways to respond to spills."

Malaysia Star: Informers Have Faith in Whistleblower Protection Act
January 11, 2011

Summary : Since the new Whistleblower Protection Act took effect this past December in Malaysia, at least 100 people have come forward with complaints of corruption or misconduct. The majority of the whistleblowers reported wrongdoings of coworkers, suggesting that they trust the new legislation to protect them from retaliation.

The Hill: Issa Promotes Whistleblower Website
January 11, 2011

Summary : In an attempt to use technology to improve government efficiency, Rep. Darrell Issa (R-CA) – the new chair of the House Committee on Oversight and Government Reform – is using a website to accept tips on occurrences of fraud and abuse in government agencies.

Rep. Issa asserts personal information will be kept “in strict confidence.”

Los Angeles Times: Charles Schwab Settles SEC Allegations That It Misled Investors About Risks of Bond Fund
Today

Summary : Brokerage firm Charles Schwab Corp. will pay $119 million to settle allegations, brought by the SEC, that the company deceived investors. The SEC has charged Charles Schwab with misleading clients about mutual fund risks, and breaking federal laws by investing too much money in a single sector.

Los Angeles Times: Egg Producers Accused of Price-fixing
January 11, 2011

Summary : A lawsuit filed against the United Egg Producers trade group – whose members control about 95 percent of U.S. egg-laying hens – and leading egg companies accuses them of manipulating the market to increase egg prices.

The complaint claims they collectively shrunk the supply "by killing off hens under the guise of treating the remaining animals more humanely by giving them more cage room."

On The Media (NPR): Blow the Whistle
January 8, 2011

Summary : This OTM segment features a follow-up interview with GAP Legal Director Tom Devine on the death of the Whistleblower Protection Enhancement Act (S. 372) in the lame duck session of Congress. The legislation was killed at the last minute (despite passing in the Senate just weeks before) due to one anonymous senator's decision to place a secret hold on the bill.

GAP and On The Media are working together to identify the senator who placed the secret hold. On The Media is asking its listeners, and GAP is asking our supporters to contact their respective senator's offices and ask them if they were the party who wrongfully killed this paramount legislation. Then, however senators may answer, you can report your correspondence to On The Media at blowthewhistle@wnyc.org and their site will post the information.

Please help us identify the culpable senator !

Los Angeles Times: Who Killed the Whistleblower Bill?
Today

Summary : This op-ed by GAP Legal Director Tom Devine explains how the whistleblower reform bill was killed last minute in Congress through one senator's “secret hold,” despite overwhelming support for the bill. Devine argues for congressional reform of the “secret hold” process, which he deems “an open invitation to corruption.”

St. Louis Beacon: Analysis - Law Treats Whistleblowers and Journalists Differently
January 8, 2011

Summary : This article by a professor of journalism at Southern Illinois University at Carbondale discusses how the recent indictment of Jeffrey Sterling -- the ex-CIA official charged with revealing classified information to the press -- raises questions over the methods used to criminally prosecute whistleblowers and the growing frequency of such prosecutions.

Key Quote : But Jesselyn Radack of the Government Accountability Project sees Sterling as an authentic whistleblower and goes on to criticize the Obama administration for the record number of criminal cases it has brought against government officials leaking to the press.

…

Radack, whose Government Accountability Project protects government whistleblowers and favors government openness, remarked sarcastically in her blog that the prosecution of Sterling under the "famously ambiguous Espionage Act... gives Obama, the 'transparency' president, the dubious distinction of bringing the most 'leak prosecutions' of any administration, ever."

Federal Times: Agencies Need a Plan for GOP's Hard Charge
January 9, 2011

This op-ed by Steven L. Katz -- the former counsel for the Senate Governmental Affairs Committee -- advises government agencies to prepare for the increased oversight promised by Rep. Darrell Issa, the new leader of the House Oversight and Government Reform Committee.

Katz suggests that agencies create a plan that includes “addressing relationships and responsiveness to GAO, inspectors general and even whistleblowers.”

New Orleans Times-Picayune: Fired Library Accountant Says Inquiries into Finances Were Halted
January 7, 2011

A former internal accountant for the New Orleans Public Library has filed a civil service complaint alleging that she was fired for exposing financial abnormalities, including $5,000 in copy machine revenue that was not properly accounted for.

GAP's mission is to promote corporate and government accountability by protecting whistleblowers, advancing occupational free speech, and empowering citizen activists. GAP has been the nation's leading whistleblower protection and advocacy organization since 1977.

The Government Accountability Project
1612 K Street NW, Washington DC 20006

Copyright (C) 2010 Government Accountability Project. All rights reserved.

State permit for Sacramento-area sewage challenged on two fronts

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By Matt Weiser
mweiser@sacbee.com Published: Wednesday, Jan. 12, 2011 - 12:00 am | Page 1B
A strict new state permit governing Sacramento's sewage is being challenged both for going too far and for not going far enough.

The Central Valley Regional Water Quality Control Board, a state agency, on Dec. 9 imposed a new discharge permit on Sacramento's regional sewage treatment plant. It limits pollution entering the Sacramento River in the region's wastewater.

Monday was the deadline to appeal the permit to the State Water Resources Control Board.

The Sacramento Regional County Sanitation District, which operates the treatment plant near Elk Grove, was one of those who appealed. It said the evidence of environmental harm is too skimpy to justify the new pollution controls.

Also appealing was the Stockton-based California Sportfishing Protection Alliance, which argues the rules aren't strict enough to protect fish and water quality.

The widely diverging views reflect the controversial and complex nature of the permit, which governs the largest urban wastewater source in the West Coast's largest estuary.

Some local politicians and business leaders are protesting the potentially high cost of compliance.

"We understand there are some improvements that need to be made," said Michael Ault, executive director of the Sacramento Downtown Partnership, who raised the issue at the group's annual State of the Downtown breakfast Tuesday. "But we've got enough barriers against us in this economy to not pile on another obstacle for development."

The regional treatment plant handles sewage from 1.3 million people in the capital metro area, from Folsom to West Sacramento. It is the Delta's largest source of ammonia, a pollutant suspected of altering the food chain.

The district has 10 years to remove ammonia and reduce other pollutants. In a preliminary calculation, the district estimates that upgrading the 1982 plant to so-called "tertiary" treatment will cost $2 billion. Monthly sewer rates may have to triple, to $60 a month. Connection fees for new homes and businesses may also jump significantly.

The sanitation district asserts that the regional board lacked sufficient evidence of environmental harm to require virtual elimination of ammonia.

It also asks the state board to overturn controls on giardia and cryptosporidium. The district estimates it will cost $1.2 billion to filter out these pathogens – the single biggest expense.

The district cites a wastewater expert who testified at the Dec. 9 hearing that existing treatment removes enough of the pathogens to meet federal health standards.

It claims the regional board ignored this evidence and, instead, imposed a stricter standard on advice from the state Department of Public Health.

"There is the need to make sure we are protective of the environment," said Stan Dean, the district engineer. "And there is the need to make sure we are responsible stewards of the money this region pays toward that. We don't think an appropriate balance has been struck."

The discharge permit must be updated every five years, in accordance with the federal Clean Water Act, to reflect updated pollution science. Sacramento's has not been updated since 2000, in part because the battle over new pollution limits has been hard-fought.

In the meantime, numerous Delta fish species have plunged toward extinction. Sacramento's ammonia is seen as a potential contributor. Recent research suggests the volume – 14 tons a day – halts phytoplankton blooms at the base of the food chain.

The California Sportfishing Protection Alliance supports the ammonia controls. But its appeal argues that other pollutants got insufficient attention.

Among them are copper and cyanide, both common in wastewater and toxic to fish.

The pollution limit for copper was set too high, the alliance argues, and those for cyanide and several other chemicals were relaxed compared to the last permit. It also argues that too much latitude was allowed for temperature increases in the river from the warmer effluent.

"Everybody was focused on the ammonia problem," said Bill Jennings, executive director of the Stockton-based alliance. "But then they bent over backward and ignored the rest of the regulations. And basically the permit is not protective of species in the Sacramento River."

The State Water Resources Control Board staff will determine if the appeals are valid. It then has 270 days to reject them or recommend a solution to the appointed board for a vote.

If rejected, the parties have the option to file suit against the regional board.

Court Defines “Current Owner” for Purposes of CERCLA Liability

New Law

The 9th Circuit Court of Appeals agreed with the District Court and determined that measuring ownership from the time of cleanup best aligns with the purposes for which CERCLA was enacted ¿ for three reasons. First, that the statute of limitations on a CERCLA action starts to run once remedial action has begun suggests that Congress intended the “owner” to be the owner at the time of cleanup. Second, CERCLA encourages responsible parties to remediate without delay and, if a landowner could avoid liability by transferring its property before a lawsuit is filed, then that landowner would have every incentive to delay cleanup until it found a buyer. Third, CERCLA was also enacted to encourage settlement and early voluntary cleanup of contaminated properties, and Hearthside's proposed rule would require that a lawsuit be filed as a prerequisite to recovery in every case.

“appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”

EPA Region 9 is soliciting proposals to carry out the Food Quality Protection Act and to support efforts by the agricultural community to “transition” away from high-risk pesticides to lower risk pesticides and sustainable practices in food production. The statutory authority for this program is Section 20 of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §136r. The program supports grants for education, extension and demonstration projects for FQPA transition and reduced risk practices for pest management in agriculture. Proposals for demonstration projects must demonstrate applications, technologies, methods or approaches that are new, innovative or experimental.

A Watershed Moment for the Clean Water Act

(1)   Looking 20 years ahead, what systemic risks will the emergency management community face?

(2)   What transformational events could shape emergency management's future?

(3)   What should the emergency management community be doing now to have the right future capacity and capabilities to serve those who depend on us?

revival is cause for celebration

FIESTA PARTY

Red Tape Rising:
Published on October 26, 2010 by James Gattuso , Diane Katz and Stephen Keen
Abstract: The burden of regulation on Americans increased at an alarming rate in fiscal year 2010. Based on data from the Government Accountability Office, an unprecedented 43 major new regulations were imposed by Washington. And based on reports from government regulators themselves, the total cost of these rules topped $26.5 billion, far more than any other year for which records are available. These costs will affect Americans in many ways, raising the price of the cars they buy and the food they eat, while destroying an untold number of jobs. With the enactment of new health care laws, financial regulations, and plans for rulemaking in other areas, the regulatory burden on Americans is set to increase even further in the coming year.

The Hidden Tax

The cost of regulation has often been called a hidden tax. Although the total does not appear anywhere in the federal budget, the multitude of rules, restrictions, and mandates imposes a heavy burden on Americans and the U.S. economy. According to a report recently released by the Small Business Administration, total regulatory costs amount to about $1.75 trillion annually, [1] nearly twice as much as all individual income taxes collected last year. [2]

Not all regulations are unwarranted, of course. Most Americans would agree on the need for protections against terrorism, although the extent of such rules is certainly subject to debate. Moreover, regulations are not necessarily inconsistent with free-market principles. Some, such as anti-fraud measures, protect the rights of consumers. But there is always a cost. And, for the same reasons that federal spending is reported, so, too, should regulatory costs.

Record Increases

This regulatory burden has been increasing for some time. During the presidency of George W. Bush, which many mistakenly consider as a period of deregulation, the regulatory burden increased by more than $70 billion, according to agency regulatory impact reports. In FY 2009, which spanned the Bush and Obama Administrations, rulemaking proceeded at a nearly unprecedented rate, with the addition of 23 major rules imposing $13 billion in new costs. [3]

But the available evidence indicates that regulatory costs increased last year at a far greater pace. According to data from the Government Accountability Office, federal agencies promulgated 43 rules during the fiscal year ending September 30, 2010, [4] that impose significant burdens on the private sector. The total costs for these rules were estimated by the regulators themselves at some $28 billion, the highest level since at least 1981, the earliest date for which figures are available. [5] Fifteen of the 43 major rules issued last during the fiscal year involved financial regulation. Another five stem from the Patient Protection and Affordable Care Act adopted by Congress in early 2010. Ten others come from the Environmental Protection Agency (EPA), including the first mandatory reporting of “greenhouse gas” emissions and $10.8 billion in new automotive fuel economy standards (adopted jointly with the National Highway Traffic Safety Administration (NHTSA)). Overall, counting the fuel standards, the EPA is responsible for the lion's share of the reported regulatory costs—some $23.2 billion.

Among the most costly of the FY 2010 crop are:

Fuel economy and emission standards [6] for passenger cars, light-duty trucks, and medium-duty passenger vehicles imposed jointly by the EPA and NHTSA. Annual cost: $10.8 billion (for model years 2012 to 2016). For automakers to recover these increased outlays, NHTSA estimates the standards will lead to increases in average new vehicle prices ranging from $457 per vehicle in FY 2012 to $985 per vehicle in FY 2016. [7]

Mandated quotas for renewable fuels. Annual cost: $7.8 billion (for 15 years). Utilizing farmland to grow corn and other crops used in renewable fuels will displace food crops, leading food costs to increase by $10 per person per year—or $40 for a family of four, according to the EPA. [8]

Efficiency standards for residential water heaters, heating equipment, and pool heaters. Annual cost: $1.3 billion. The appliance upgrades necessary to comply with the new standards will raise the price of a typical gas storage water heater by $120. [9]

Limits on “effluent” discharges from construction sites imposed by the EPA. Annual cost: $810.8 million. The cost of the requirements will force the closure of 147 construction firms and the loss of 7,257 jobs, according to the EPA. Homebuyers also will bear some of the costs, with an increase in mortgage costs of about $1,953.

Regulatory Reductions Missing in Action

Measures to reduce regulatory burdens, by contrast, were few and far between in FY 2010. Only five significant rulemakings adopted last year reduced burdens. Of these, cost reductions were quantified for only two, for reported savings of $1.5 billion. This leaves a net increase in the regulatory burden of $26.5 billion.

Moreover, one of the five measures—though technically deregulatory in nature—relates to an unparalleled expansion of EPA powers. Due to its determination last year that greenhouse gases are pollutants, the agency is moving to set emissions limits for such gases. To follow the standards in the Clean Air Act would corral millions of currently unregulated “facilities,” including offices and apartment buildings, shopping malls, restaurants, hotels, hospitals, schools, houses of worship, theaters, and sports arenas into the EPA regulatory regime. In hopes of quieting political outrage over so sweeping a dictate, the EPA's “Tailoring Rule” [10] set a minimum threshold level for regulation. Therefore, fewer facilities would be subject to permit requirements, making imposition of the emissions limits more feasible. Rather than reduce overall burdens, this action actually facilitated increased burdens. [11]

Actual Costs Likely Higher

The actual cost of regulations adopted in FY 2010 is almost certainly much higher than $26.5 billion. As a first matter, the cost of non-economically significant rules—rules deemed not likely to have an annual impact of $100 million or more—is not calculated (although such rules are believed to constitute only a small portion of total regulatory costs). Moreover, costs were not quantified for 12 of the economically significant rules adopted in FY 2010.

Many of the rules lacking quantified costs involve financial regulation. The Federal Reserve Board, for instance, did not quantify any costs for its new “Truth in Lending” [12] regulations—which impose fee and disclosure requirements for credit card accounts—although the new rules are generally expected to be costly. Similarly, costs were not calculated for new Federal Reserve Board regulations on prepaid electronic gift cards. [13]

It should also be noted that reported costs are likely minimized by allowing agencies to make the initial calculations, thereby casting their proposals in the best light. This could have a substantial impact: Overall, there is evidence that agencies systematically understate regulatory costs. In its 2005 report to Congress, the OMB's Office of Information and Regulatory Affairs conducted ex ante analyses of regulations to test the accuracy of cost-benefit estimates. The study determined that regulators overestimated benefits 40 percent of the time and underestimated costs 34 percent of the time. [14]

Even a finding that costs exceed benefits does not necessarily stop a new rule from going into effect. For instance, in evaluating new regulations for train-control systems, the Department of Transportation identified costs of $477.4 million, and benefits of a mere $22 million. Nevertheless, due to a statutory mandate, the regulations were adopted.

The EPA is prohibited by law from considering costs in devising regulations under the Clean Air Act and other major environmental statutes. Thus, the agency recently set new, more stringent standards on emissions of nitrogen dioxide without formally considering the economic or technical feasibility of compliance. [15] While the EPA did prepare a cost-benefit analysis—concluding that the costs exceed the benefits—agency officials conceded they had no way of determining the number of localities that would be out of compliance under the new rule.

Lastly, it should be noted that annual compliance costs constitute only part of the economic burden of regulation. New rules also entail start-up costs for new equipment, conversions of industrial processes, and devising data collection and reporting procedures. These “first-year” costs exceed $3.1 billion for the 43 new FY 2010 regulations. For example, new restrictions on “short sales” [16] imposed by the Securities and Exchange Commission will require initial costs of more than $1 billion [17] for modifications to computer systems and surveillance mechanisms, and for information-gathering, management, and recordkeeping systems. Likewise, the EPA estimates one-time implementation costs of nearly $745 million for new limits on emissions from diesel engines used in energy production. [18]

More Rules on the Way

Many, many more regulations are in the pipeline. According to one estimate, financial regulation legislation recently adopted by Congress, known as the Dodd–Frank bill, will require 243 new formal rule-makings by 11 different federal agencies. [19] So wide-ranging are regulators' new powers, in fact, that the Department of Health and Human Services has failed to meet one-third of the deadlines mandated by the new federal health care law, according to a report by the Congressional Research Service. [20]

Meanwhile, the new Consumer Financial Protection Bureau created under the Dodd–Frank measure will wield vaguely defined powers to regulate financial products and services, including mortgages, credit cards, even student loans. And, the Federal Communications Commission is mulling new regulations to limit how Internet service providers manage their networks. Such “net neutrality” rules, if enacted, would undermine investment incentives, thereby robbing the nation of much-needed broadband upgrades. [21]

Taken together, these initiatives embody a stunningly full regulatory agenda—indicating that this year's record for regulatory increases will not stand for long.

Conclusion

The regulatory burden increased at an unprecedented rate during FY 2010, as measured by both the number of new major rules as well as their reported costs. Even more are on the way in 2011.

A number of steps have been proposed to stem this growth, ranging from automatic sunsetting of rules [22] to requiring congressional approval of all new major rules. [23]

Mere procedural reforms will not be enough to stem this regulatory tide. Regulatory costs will rise until policymakers appreciate the burdens that regulations are imposing on Americans and the economy, and exercise the political will necessary to limit—and reduce—those burdens.

— James L. Gattuso is Senior Research Fellow in Regulatory Policy, Diane Katz is Research Fellow in Regulatory Policy, and Stephen A. Keen is a Research Assistant, in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.

Appendix

Major Rulemaking Proceedings that Increased Regulatory Burdens, October 2009–September 2010

October 2009

October 30, 2009, Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases”: $94.9 million annually; $140.7 million start-up.

November 2009

November 17, 2009, Federal Reserve System, “Electronic Fund Transfers”: $10.9 million annually.

December 2009

December 1, 2009, Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category”: $810.8 million annually.

December 4, 2009, Securities and Exchange Commission, “Amendments to Rules for Nationally Recognized Statistical Rating Organizations”: $34.9 million annually; $16.2 million start-up.

December 4, 2009, Department of Transportation, Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines”: $101.1 million annually; $130.1 million start-up.

December 23, 2009, Securities and Exchange Commission, “Proxy Disclosure Enhancements”: $66.5 million annually.

January 2010

January 8, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Certain Consumer Products (Dishwashers, Dehumidifiers, Microwave Ovens, and Electric and Gas Kitchen Ranges and Ovens) and for Certain Commercial and Industrial Equipment (Commercial Clothes Washers)”: $23.4 million annually.

January 11, 2010, Securities and Exchange Commission, “Custody of Funds or Securities of Clients by Investment Advisers”: $125.1 million annually; $1.2 million start-up.

January 15, 2010, Federal Reserve System and Federal Trade Commission, “Fair Credit Reporting Risk-Based Pricing Regulations”: $252.1 million annually.

January 15, 2010, Department of Transportation, Federal Railroad Administration, “Positive Train Control Systems”: $477.4 million annually.

January 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency; Federal Reserve System; Federal Deposit Insurance Corporation; Department of the Treasury, Office of Thrift Supervision, “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues”: cost not quantified.

February 2010

February 9, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide”: cost not quantified.

February 17, 2010, Department of Agriculture, Agricultural Marketing Service, “National Organic Program; Access to Pasture (Livestock)”: cost not quantified.

February 22, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.

March 2010

March 3, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $373.4 million annually; $744.7 million start-up.

March 4, 2010, Securities and Exchange Commission, “Money Market Fund Reform”: $60.2 million annually; $86.9 million start-up.

March 9, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Small Electric Motors”: $263.9 million annually.

March 10, 2010, Securities and Exchange Commission, “Amendments to Regulation SHO”: $1.2 billion annually; $1.1 billion start-up.

March 19, 2010, Department of Health and Human Services, Food and Drug Administration, “Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents”: cost not quantified.

March 26, 2010, Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program”: $7.8 billion annually.

April 2010

April 1, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.

April 5, 2010, Department of Transportation, Federal Motor Carrier Safety Administration, “Electronic On-Board Recorders for Hours-of-Service Compliance”: $139 million annually.

April 14, 2010, Department of Health and Human Services, Food and Drug Administration, “Use of Ozone-Depleting Substances; Removal of Essential-Use Designation (Flunisolide, etc.)”: $181.9 million annually.

April 16, 2010, Department of Energy: Energy Conservation Program, “Energy Conservation Standards for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters”: $1.3 billion annually.

May 2010

May 6, 2010, Environmental Protection Agency, “Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program”: $419.5 million annually; $552 million start-up.

May 7, 2010, Environmental Protection Agency and Department of Transportation, National Highway Traffic Safety Administration, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule”: $10.8 billion annually (2012–2016).

May 13, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, Office of the Secretary, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act”: $11 million annually.

May 28, 2010, Department of Transportation, Federal Aviation Administration, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements to Support Air Traffic Control (ATC) Service”: $100 million annually.

June 2010

June 4, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.

June 17, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act”: $25.2 million annually; $30.2 million start-up.

June 22, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide”: $1.6 billion annually.

June 28, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections”: $4.8 million annually.

June 29, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.

July 2010

July 14, 2010, Securities and Exchange Commission, “Political Contributions by Certain Investment Advisers”: $85.1 million annually; $22.6 million start-up.

July 16, 2010, Department of Labor, Employee Benefits Security Administration, “Reasonable Contract or Arrangement Under Section 408(b)(2)—Fee Disclosure ”: $57.7 million annually.

July 19, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act”: cost not quantified.

July 23, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Internal Claims and Appeals and External Review Processes Under the Patient Protection and Affordable Care Act”: $75.1 million annually.

July 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency, “Registration of Mortgage Loan Originators”: $123.9 million annually; $283.3 million start-up.

August 2010

August 9, 2010, Department of Labor, Occupational Safety and Health Administration, “Cranes and Derricks in Construction”: $151.6 million annually.

August 12, 2010, Securities and Exchange Commission: “Amendments to Form ADV”: $20.5 million annually; $56.4 million start-up.

August 20, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $253 million annually.

September 2010

September 9, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants”: $1 billion in 2013.

September 16, 2010, Securities and Exchange Commission, “Facilitating Shareholder Director Nominations”: $8 million annually.

Major Rulemaking Proceedings that Decreased Regulatory Burdens, October 2009–September 2010

October 19, 2009, Securities and Exchange Commission, “Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers”: savings not quantified.

November 2, 2009, Department of Health and Human Services, Centers for Disease Control and Prevention, “Medical Examination of Aliens—Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance”: savings not quantified.

November 13, 2009, Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule—Amendments”: $98.6 million.

March 31, 2010, Department of Justice, Drug Enforcement Administration, “Electronic Prescriptions for Controlled Substances”: $1.4 billion.

June 3, 2010, Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule”: savings not quantified.

where landowners fence or post "no trespassing" signs on their property or otherwise indicate
unmistakably that entry is not allowed, their "expectation that their privacy rights will be
respected and that they will be free from unwanted intrusions is reasonable".

Authority:   42 U.S.C. 1857 et seq.

Source:   38 FR 12784, May 15, 1973, unless otherwise noted.

§ 40.100   Purpose of regulation.

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These provisions establish and codify policies and procedures governing the award of research and demonstration grants by the Environmental Protection Agency.

§ 40.105   Applicability and scope.

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This part establishes mandatory policies and procedures for all EPA research and demonstration grants. The provisions of this part supplement the EPA general grant regulations and procedures (40 CFR part 30). Accordingly, all EPA research and demonstration grants are awarded subject to the EPA interim general grant regulations and procedures (40 CFR part 30) and to the applicable provisions of this part 40.

§ 40.110   Authority.

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EPA research and demonstration grants are authorized under the following statutes:

(1) Section 103 (42 U.S.C. 1857b) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, and control of air pollution.

(2) Section 104 (42 U.S.C. 1857b–1) authorizes grants for research and development of new and improved methods for the prevention and control of air pollution resulting from the combustion of fuels.

(b) The Federal Water Pollution Control Act, as amended, Public Law 92–500.

(1) Section 104(b) (33 U.S.C. 1254(b)) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution.

(4) Section 104(r) (33 U.S.C. 1254(r)) authorized grants for the conduct of basic research into the structure and function of freshwater aquatic ecosystems, and to improve understanding of the ecological characteristics necessary to the maintenance of the chemical, physical, and biological integrity of freshwater aquatic ecosystems.

(5) Section 104(s) (33 U.S.C. (s)) authorizes grants to conduct and report on interdisciplinary studies on river systems, including hydrology, biology, ecology, economics, the relationship between river uses and land uses, and the effects of development within river basins on river systems and on the value of water resources and water-related activities.

(6) Section 105(a) (33 U.S.C. 1255(a)) authorizes grants for research and demonstration of new or improved methods for preventing, reducing, and eliminating the discharge into any waters of pollutants from sewers which carry storm water or both storm water and pollutants; and for the demonstration of advanced waste treatment and water purification methods (including the temporary use of new or improved chemical additives which provide substantial immediate improvement to existing treatment processes), or new or improved methods of joint treatment systems for municipal and industrial wastes.

(7) Section 105(b) (33 U.S.C. 1255(b)) authorizes grants for demonstrating, in river basins or portions thereof, advanced treatment and environmental enhancement techniques to control pollution from all sources, within such basin or portions thereof, including nonpoint sources, together with in-stream water quality improvement techniques.

(8) Section 105(c) (33 U.S.C. 1255(c)) authorizes grants for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.

(9) Section 105(e)(1) (33 U.S.C. 1255(e)(1)) authorizes grants for research and demonstration projects with respect to new and improved methods of preventing, reducing, and eliminating pollution from agriculture.

11) Section 107 (33 U.S.C. 1257) authorizes grants for projects to demonstrate comprehensive approaches to the elimination or control of acid or other mine water pollution resulting from active or abandoned mining operations and other environmental pollution affecting water quality within all or part of a watershed or river basin, including siltation from surface mining.

(d) The Solid Waste Disposal Act, as amended, by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq. ).

(1) Section 8001 (42 U.S.C. 6981) authorizes grants for research and demonstration projects relating to solid waste.

(2) Section 8004 (42 U.S.C. 6984) authorizes grants for demonstration of new or improved technologies for resource recovery.

(3) Section 8005 (42 U.S.C. 6985) authorizes grants to conduct special studies and demonstration projects on recovery of useful energy and materials.

(4) Section 8006 (42 U.S.C. 6986) authorizes grants for the demonstration of resource recovery system or for the construction of new or improved solid waste disposal facilities.

§ 40.115-1   Construction.

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May include the preliminary planning to determine the economic and engineering feasibility of a facility, the engineering, architectural, legal, fiscal, and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary to the construction of a facility, the erection, acquisition, alteration, remodeling, improvement, or extension of a facility, and the inspection and supervision of the construction of a facility.

§ 40.115-5   Person.

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(a) Under the Federal Water Pollution Control Act, an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.

(b) Under the Resource Conservation and Recovery Act, an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56057, Oct. 20, 1977]

§ 40.120   Publication of EPA research objectives.

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The Office of Research and Development of EPA publishes a statement of research objectives and priorities annually in a document entitled “Office of Research and Development—Program Guide.” This document may be obtained from either the Office of Research and Development, RD–674, or the Grants Administration Division, PM–216, U.S. Environmental Protection Agency, Washington, DC 20460.

[42 FR 56057, Oct. 20, 1977]

§ 40.125   Grant limitations.

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§ 40.125-1   Limitations on duration.

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(a) [Reserved]

(b) No research or demonstration grant shall be approved for a project period in excess of 5 years.

(c) The grant award official may extend the budget and project periods for up to an additional 12 months without additional grant funds, when such extensions are in the best interest of the Government.

[42 FR 56057, Oct. 20, 1977, as amended at 72 FR 52010, Sept. 12, 2007]

§ 40.125-2   Limitations on assistance.

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In addition to the cost-sharing requirements pursuant to 40 CFR 30.720, research and demonstration grants shall be governed by the specific assistance limitations listed below:

(a) Federal Water Pollution Control Act. (1) Section 104(s)—no grant in any fiscal year may exceed $1 million.

(2) Sections 105 (a), (c) and 108—no grant may exceed 75 percent of the allowable actual project costs.

(b) Clean Air Act. (1) Section 104—no grant may exceed $1,500,000.

(2) [Reserved]

(c) Resource Conservation and Recovery Act. (1) Sections 8001, 8004, and 8005. The maximum practicable cost sharing is required.

(2) Section 8006. The Federal share for any grant for the demonstration of resource recovery systems shall not exceed 75 percent and is subject to the conditions contained in section 8006(b) of the Act. The Federal share for any grant for the construction of new or improved solid waste disposal facilities shall not exceed 50 percent in the case of a project serving an area which includes only one municipality and 75 percent in any other case, and is subject to the limitations contained in section 8006(c) of the Act. Not more than 15 percent of the total funds authorized to be appropriated for any fiscal year to carry out this section shall be awarded for projects in any one State.

[38 FR 12784, May 15, 1973, as amended at 42 FR 20083, May 8, 1977; 42 FR 56057, Oct. 20, 1977]

§ 40.130   Eligibility.

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Except as otherwise provided below, grants for research and demonstration projects may be awarded to any responsible applicant in accordance with 40 CFR 30.340:

(a) The Clean Air Act, as amended—public or nonprofit private agencies, institutions, organizations, and to individuals.

(b) Resource Conservation and Recovery Act.

(1) Section 8001, public authorities, agencies, and institutions; private agencies and institutions; and individuals.

(2) Sections 8004 and 8005, public agencies and authorities or private persons.

(3) Section 8006, State, municipal, interstate or intermunicipal agencies.

(4) No grant may be made under this Act to any private profit-making organization.

(c) The Federal Insecticide, Fungicide, and Rodenticide Act, as amended—other Federal agencies, universities, or others as may be necessary to carry out the purposes of the act.

(d) The Federal Water Pollution Control Act, as amended:

(1) Section 104(b)—State water pollution control agencies, interstate agencies, other public or nonprofit private agencies, institutions, organizations, and to individuals.

(2) Sections 104 (h) and (i)—public or private agencies and organizations and to individuals.

(3) Section 104(r)—colleges and universities.

(4) Section 104(s)—institutions of higher education.

(5) Sections 105 (a), (e)(2), and 107—State, municipal, interstate, and intermunicipal agencies.

(6) Section 195(b)—State or States or interstate agency.

(7) Sections 105 (c) and (e)(1)—persons.

(8) Section 108—State, political subdivision, interstate agency, or other public agency, or combination thereof.

(9) Section 113—only to the State of Alaska .

(e) The Public Health Service Act, as amended—only to nonprofit agencies, institutions, organizations, and to individuals.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977]

§ 40.135   Application.

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§ 40.135-1   Preapplication coordination.

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(a) All applicants. (1) Applicants for research and demonstration grants are encouraged to contact EPA for further information and assistance prior to submitting a formal application. The EPA regional office or the laboratory nearest the applicant will be able to provide such assistance or to refer the applicant to an appropriate EPA representative.

(2) Applicants shall prepare an environmental assessment of the proposed project where applicable, outlining the anticipated impact on the environment pursuant to 40 CFR part 6.

(b) Applications for grants for demonstration projects funded by the Office of Solid Waste will be solicited through the Department of Commerce Business Daily, and selections will be made on a competitive basis.

[38 FR 12784, May 15, 1973, as amended at 41 FR 20659, May 20, 1976; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]

§ 40.135-2   Application requirements.

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All applications for research and demonstration grants shall be submitted in an original and 8 copies to the Environmental Protection Agency, Grants Administration Division, Washington, DC 20460, in accordance with §§30.315 through 30.315–3.

(a) Applications involving human subjects. (1) Safeguarding the rights and welfare of human subjects involved in projects supported by EPA grants is the responsibility of the institution which receives or is accountable to EPA for the funds awarded for the support of the project.

(2) Institutions must submit to EPA, for review, approval, and official acceptance, a written assurance of its compliance with guidelines established by Department of Health, Education, and Welfare concerning protection of human subjects. However, institutions which have submitted and have had accepted, general assurance to DHEW under these guidelines will be considered as being in compliance with this requirement. These guidelines are provided in DHEW Publication No. (NIH) 72–102, the “Institutional Guide to DHEW Policy on Protection of Human Subjects.” Copies of this publication are available from the Superintendent of Documents, U.S. Government Printing Office, Washington , DC 20420 .

(3) Applicants must provide with each proposal involving human subjects a certification that it has been or will be reviewed in accordance with the institution's assurance. This certification must be renewed annually on the basis of continuing review of the supported project.

(b) Applications involving laboratory animals. Each application for a project involving the use of warmblooded animals shall include a written assurance that the applicant has registered with the Department of Agriculture and is in compliance with the rules, regulations, and standards enunciated in the Animal Welfare Act, Public Law 89–554, as amended.

(c) Notice of research project ( NRP ). Each application for research must include a summary (NRP) of proposed work (200 words or less) incorporating objectives, approach and current plans and/or progress. Upon approval of an application, summaries are forwarded to the Smithsonian Science Information Exchange. Summaries of work in progress are exchanged with government and private agencies supporting research and are forwarded to investigators who request such information.

(d) Federal Water Pollution Control Act. (1) All applications for grants under section 105(a) must have been approved by the appropriate State water pollution control agency or agencies.

(2) All applications for grants under section 107, where the proposed project will be located in the Appalachian region, shall have been coordinated with the Appalachian Regional Commission for determination that such demonstration project is consistent with the objectives of the Appalachian Regional Development Act of 1965, as amended.

(e) Intergovernmental review. EPA will not award funds under this subpart without review and consultation, if applicable, in accordance with the requirements of Executive Order 12372, as implemented in 40 CFR part 29 of this chapter.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]

§ 40.140   Criteria for award.

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In determining the desirability and extent of funding for a project and the relative merit of an application, consideration will be given to the following criteria:

§ 40.140-1   All applications.

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(a) The relevancy of the proposed project to the objectives of the EPA research and demonstration program;

(b) The availability of funds within EPA;

(c) The technical feasibility of the project;

(d) The seriousness, extent, and urgency of the environmental problems toward which the project is directed;

(e) The anticipated public benefits to be derived from the project in relation to the costs of the project;

(f) The competency of the applicant's staff and the adequacy of the applicant's facilities and available resources;

(g) The degree to which the project can be expected to produce results that will have general application to pollution control problems nationwide;

(h) Whether the project is consistent with existing plans or ongoing planning for the project area at the State, regional, and local levels;

(i) The existence and extent of local public support for the project;

(j) Whether the proposed project is environmentally sound;

(k) Proposed cost sharing.

§ 40.140-2   [Reserved]

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§ 40.140-3   Federal Water Pollution Control Act.

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(a) All applications for grants under section 105(c) must provide evidence that the proposed project will contribute to the development or demonstration of a new or improved method of treating industrial wastes or otherwise preventing pollution by industry, which method shall have industrywide application;

(b) All applications for grants under section 113 must include provisions for community safe water supply systems, toilets, bathing and laundry facilities, sewage disposal facilities and programs relating to health and hygiene. Such projects must also be for the further purpose of developing preliminary plans for providing such safe water and such elimination or control of water pollution for all native villages in the State of Alaska .

§ 40.145   Supplemental grant conditions.

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In addition to the EPA general grant conditions (40 CFR part 30, subpart C), all grants are awarded subject to the following requirements:

(a) The project will be conducted in an environmentally sound manner.

(b) In addition to the notification of project changes required pursuant to 40 CFR 30.900, prior written approval by the grants officer is required for project changes which may (1) alter the approved scope of the project, (2) substantially alter the design of the project, or (3) increase the amount of Federal funds needed to complete the project. No approval or disapproval of a project change pursuant to 40 CFR 30.900 or this section shall commit or obligate the United States to an increase in the amount of the grant or payments thereunder, but shall not preclude submission or consideration of a request for a grant amendment pursuant to 40 CFR 30.900–1.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

§ 40.145-1   Resource Conservation and Recovery Act.

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Programs for which a Federal grant is awarded by the Environmental Protection Agency to a State, municipal, interstate or intermunicipal agency, or to any public authority, agency or institution, under the Resource Conservation and Recovery Act, shall be the subject of public participation consistent with part 249 of this chapter.

[42 FR 56057, Oct. 20, 1977]

§ 40.145-2   Federal Water Pollution Control Act.

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(a) No person in the United States shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving assistance under the Act.

(b) Grants under section 107 are awarded subject to the conditions—

(1) That the State shall acquire any land or interests therein necessary for such project to assure the elimination or control of acid or other mine water pollution; and

(2) That the State shall provide legal and practical protection to the project area to insure against any activities which will cause future acid or other mine water pollution.

§ 40.145-3   Projects involving construction.

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Research and demonstration grants for projects involving construction shall be subject to the following conditions:

(a) The applicant will demonstrate to the satisfaction of the grants officer that he has or will have a fee simple or such other estate or interest in the site of the project, and rights of access, as the grants officer finds sufficient to assure undisturbed use and possession for the purpose of construction and operation for the estimated life of the project; and in the case of projects serving more than one municipality, that the participating communities have such interests or rights as the grants officer finds sufficient to assure their undisturbed utilization of the project for the estimated life of the project.

(b) Invitations for bids or requests for proposals shall be based upon a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. “Brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement, and when so used the specific features of the named brand which must be met by offerors should be clearly specified.

(c) Positive efforts shall be made by the grantees to utilize small business and minority-owned business sources of supplies and services.

(d) Subagreements for construction work may be negotiated when advertising for competitive bids is not feasible; however, the grantee must adequately demonstrate its need to contract with a single or sole source. All such subagreements are subject to prior approval by the grants officer.

(e) Construction work will be performed by the fixed-price (lump sum) or fixed-rate (unit price) method, or a combination of these two methods, unless the grants officer gives advance written approval to use some other method of contracting. The cost-plus-a-percentage-of-cost method of contracting shall not be used. Adequate methods of advertising for and obtaining competitive sealed bids will be employed prior to award of the construction contract. The award of the contract will be made to the responsible bidder submitting the lowest responsive bid, which shall be determined without regard to State or local law whereby preference is given on factors other than the specification requirements and the amount of bid. The grantee must promptly transmit to the grants officer copies of bid protests, decisions on such protests, and related correspondence. The grants officer will cause appropriate review of grantee procurement methods to be made.

(f) On construction contracts exceeding $100,000, each bidder must furnish a bid guarantee equivalent to 5 percent of the bid price. In addition, the contractor awarded the contract must furnish performance and payment bonds, each of which shall be in an amount not less than 100 percent of the contract price. Construction contracts less than $100,000 shall follow the State or local requirements relating to bid guarantees, performance bonds, and payment bonds.

(g) The construction of the project, including the letting of contracts in connection therewith, shall conform to the applicable requirements of State, territorial, and local laws and ordinances to the extent that such requirements do not conflict with Federal laws.

(h) The grantee will provide and maintain competent and adequate engineering supervision and inspection for the project to insure that the construction conforms with the approved plans and specifications.

(i) Any construction contract must provide that representatives of the Environmental Protection Agency and the State, as appropriate, will have access to the work whenever it is in preparation or progress and that the contractor will provide proper facilities for such access and inspection. The contract must also provide that the grants officer, the Comptroller General of the United States , or any authorized representative shall have access to any books, documents, papers, and records of the contractor which are pertinent to the project for the purpose of making audit, examination, excerpts, and transcriptions thereof.

(j) The grantee agrees to construct the project or cause it to be constructed in accordance with the application, plans and specifications, and subagreements approved by EPA in the grant agreement or amendments.

(k) In addition to the notification of project changes pursuant to 40 CFR 30.900, a copy of any construction contract or modifications thereof, and of revisions to plans and specifications must be submitted to the grants officer.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

§ 40.150   Evaluation of applications.

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Every application for a research or demonstration grant will be evaluated by appropriate EPA staff in terms of relevancy and the applicable criteria set forth in §40.140. Only applications considered relevant to EPA research and demonstration objectives will receive further consideration and be subjected to additional review. Relevancy will be measured by program needs and priorities as defined in the Agency's current planned objectives. Relevancy, coupled with the results of technical review, will provide the basis for funding recommendations.

(a) New applications. Applications considered relevant to EPA research and demonstration objectives will be reviewed for technical merit by at least one reviewer within EPA and at least two reviewers outside EPA. Review by a National Advisory Council is statutorily required for radiation grants.

(b) Continuation applications. Continuation applications will be reviewed by appropriate EPA staff only. Recommendations for continuation of funding will be based on progress toward the accomplishment of the goals set forth for the project and continued Agency needs and priorities.

§ 40.155   Availability of information.

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(a) The availability to the public of information provided to, or otherwise obtained by, the Administrator under this part shall be governed by part 2 of this chapter.

(b) An assertion of entitlement to confidential treatment of part or all of the information in an application may be made using the procedure described in §30.235(b). See also §§2.203 and 2.204 of this chapter.

(c) All information and data contained in the grant application will be subject to external review unless deviation is approved for good cause pursuant to 40 CFR 30.1000.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 41 FR 36918, Sept. 1, 1976]

§ 40.160   Reports.

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§ 40.160-1   Progress reports.

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The grant agreement will normally require the submission of a brief progress report after the end of each quarter of the budget period. A monthly progress report may be required for some demonstration projects, if set forth in the grant agreement. Progress reports should fully describe in chart or narrative format the progress achieved in relation to the approved schedule and project milestones. Special problems or delays encountered must be explained. A summary progress report covering all work on the project to date is required to be included with applications for continuation grants (see §40.165b). This report may be submitted one quarter prior to the end of the budget period.

§ 40.160-2   Financial status report.

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A financial status report must be prepared and submitted within 90 days after completion of the budget and project periods in accordance with §30.635–3.

[42 FR 56057, Oct. 20, 1977]

§ 40.160-3   Reporting of inventions.

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As provided in appendix B of 40 CFR part 30, immediate and full reporting of all inventions to the Environmental Protection Agency is required. In addition:

(a) An annual invention statement is required with each continuation application.

(b) A final invention report is required within 90 days after completion of the project period.

(c) When a principal investigator changes institutions or ceases to direct a project, an invention statement must be promptly submitted with a listing of all inventions during his administration of the grant.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]

§ 40.160-4   Equipment report.

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At the completion or termination of a project, the grantee will submit a listing of all items of equipment acquired with grant funds with an acquisition cost of $300 or more and having a useful life of more than 1 year.

§ 40.160-5   Final report.

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The grantee shall submit a draft of the final report for review no later than 90 days prior to the end of the approved project period. The report shall document project activities over the entire period of grant support and shall describe the grantee's achievements with respect to stated project purposes and objectives. The report shall set forth in complete detail all technical aspects of the projects, both negative and positive, grantee's findings, conclusions, and results, including, as applicable, an evaluation of the technical effectiveness and economic feasibility of the methods or techniques investigated or demonstrated. The final report shall include EPA comment when required by the grants officer. Prior to the end of the project period, one reproducible copy suitable for printing and such other copies as may be stipulated in the grant agreement shall be transmitted to the grants officer.

§ 40.165   Continuation grants.

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To be eligible for a continuation grant within the approved project period, the grantee must:

(a) Have demonstrated satisfactory performance during all previous budget periods; and

(b) Submit no later than 90 days prior to the end of the budget period a continuation application which includes a detailed summary progress report, an estimated financial statement for the current budget period, a budget for the new budget period; and an updated work plan revised to account for actual progress accomplished during the current budget period.

Report Faults EPA Oversight

The report recommends that agency officials ensure that accurate standards are used to assess conditions at the site and that laboratories use the correct analytic methods.

In related news, the start of the 112th Congress also featured the official closure of the Select Committee for Energy Independence and Global Warming, the only Congressional committee dedicated to tackling climate change.

Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
Prosecution Threshold / Culpability / Harm
Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
False Statements - 18 USC 1001
Conspiracy - 18 USC 371
Concealment of a felony - 18 USC 4 (misprision)
False Claims - 18 USC 287
Obstruction of Justice - 18 USC 1505
Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
obstruct or impede a legal investigation
"Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
fearful master." - George Washington

Freedom at Risk: Reflections on Politics, Liberty, and the State

A book event

James L. Buckley may be the only American alive who has held high office in each branch of the federal government – as U.S. Senator from New York, an Under Secretary of State under President Ronald Reagan, and a Judge on the U.S. Court of Appeals for the D.C. Circuit. His comprehensive understanding of how Washington works equips him to address authoritatively the intrusive growth of the federal government and illuminate such diverse issues as judicial activism, environmental regulation, the place of religion in public life, energy policies, campaign financing, and women's rights. On the international front, he explains the dangers of abandoning foreign commitments and the difficulties posed by political corruption in the United Nations. Many of these essays and speeches are from the Seventies, but problems identified then have grown exponentially in the decades since, and the author's insights are even more relevant today than they were when he first entered the Senate.

In Freedom at Risk , Buckley's collected essays, musings, and speeches tell why government is incapable of managing an economy, and why the transformation of the federal government into a centrally administered welfare state is undermining the most critical safeguard the Founders had written into the Constitution, namely the principle of federalism. Here, in a perceptive analysis spanning a lifetime in Washington, lies an outline of the steps that must be taken to save constitutional government, if that is still possible.

An Entrepreneurship and Development Symposium

Cosponsored by George Mason University and The Heritage Foundation

~ AGENDA ~

8:30 a.m.
Registration and Continental Breakfast

9:00 a.m.
Welcome and Opening Remarks

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

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

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

Steven Pearlstein
Business Columnist, The Washington Post

John Haltiwanger, Ph.D.
Professor of Economics, University of Maryland
William Beach
Director, Center for Data Analysis, The Heritage Foundation

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

Leora Klapper
Senior Financial Economist, The World Bank

Steve Crabtree
Contributing Writer, Gallup Corporation

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

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

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

Zoltan J. Acs, Ph.D.
Director, Center for Entrepreneurship and Economics, George Mason University
on “GEDI: A Tool for the 21 st Century”

1:15 p.m.
Keynote Address

Roger Stough
Vice President for Research and Economic Development, George Mason University

1:45 p.m.
Panel 3 – Public Policy: Channeling the KILLER APP for Global Development

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

Samee Desai
Assistant Professor, Entrepreneurship and Innovation, Indiana University

David Audretsch
Director, Institute for Development Strategies, Indiana University

Jim Blasingame
Host, The Small Business Advocate (Moderator)

3:00 p.m.
Conference Wrap-Up

Jack Goldstone
Director, Center for Global Policy, George Mason University
on “Getting to 2050: Population, Cities and Entrepreneurship”

No Retreat for Veteran EPA Whistleblower

United States v. Tarkowski, [2000] 50 Envt Rep. Cas. (BNA) 1121, 2000 WL 12442 (N.D. Ill. 2000).

In a subsequent order, the court nevertheless denied the government=s motion for
access, finding that there was no reasonable basis to believe that releases or threatened
releases of hazardous substances had occurred or might occur, except for the possible
presence of pesticides and metals in some soil areas. But, even as for the latter, U.S. EPA
had failed to follow its own established methods for determining whether a response action
was necessary. The court also denied a second motion for access filed by the government,
to conduct investigation and sampling (encompassing surface and well water as well as soil,
sediment and containers), including subsurface areas, finding that the second motion went
Avastly beyond@ the basis of the court=s holding regarding the first motion, and far beyond
as well the investigation of releases for which the government had any reasonable basis to
believe had occurred or might be threatened. Furthermore, the government had failed to
establish that defendant had refused access to the property for the purposes sought in the
second motion. 2000 WL 696740 (N.D. Ill. May 30, 2000).
On appeal, the Seventh Circuit affirmed the district court=s order, sharply rebuking the
government for taking Athe extreme position that, provided it has probable cause to believe
that there is even a thimbleful of a hazardous substance spilled . . . or even a drop, it has an
absolute right to an access order regardless of the action it proposes to take, [even]
rendering the property wholly useless to the owner@. It found that the government=s
position did not serve a public purpose, strike a reasonable balance between property and
community rights, rationally advance the agency=s mission, nor comport with
constitutional limitations upon federal regulation of purely local activities and upon
searches and seizures, noting that A[a]ccess orders are orders to seize as well as search
because of the control the agency exerts over the property. It acknowledged that EPA
would have been entitled to an order to enter the property for the limited purpose of
conducting tests, and later to a second access order to execute a remediation order (which
would not be directly reviewable) should the testing demonstrate a need therefor.
However, the blanket authority in Section 113(h) of CERCLA precluding direct review of
EPA=s removal and remedial actions cannot not act to deprive the courts of the power to
review whether access orders sought to effectuate such actions are arbitrary or capricious,
regardless of the magnitude of the impact upon the property owner or the minimal threat
of contamination posed to the environment. 248 F.3d 596 (7th Cir. 2001). In subsequent
orders, the district court found that the government=s position in the matter had not been
justified, 53 Env=t Rep. Cas. (BNA) 1958 (N.D. Ill. Nov. 26, 2001), and awarded a total of
approximately $95,000 to defendant in attorneys fees and expenses under the Equal Access
to Justice Act, 2002 WL 460831 (N.D. Ill. Mar. 26, 2002).

Laws and Regulations
�� Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701, et seq.).
Section 302(b) authorizes the Secretary of the Interior, through the BLM, to take actions that
prevent unnecessary or undue degradation of public lands.
�� National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR 300).
The NCP “provide[s] the organizational structure and procedures for preparing for and
responding to discharges of oil and releases of hazardous substances, pollutants, and
contaminants” (40 CFR 300.1).
�� Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42
U.S.C. 9601). CERCLA was enacted to address risks to public health and the environment
resulting from actual or potential releases of hazardous substances and to recover costs spent for
cleanups from responsible parties. Executive Orders (EO) 12580 (Superfund Implementation)
and 13016 (Amendment to E.O. 12580) delegate CERCLA authority and responsibility to the
DOI to respond to actual or potential releases of hazardous substances on or affecting public
lands administered, by the BLM and initiate cost recovery from responsible parties. These
actions should comply with the requirements of the NCP.
�� Watershed Restoration and Enhancement Agreements (“Wyden Amendment”) (Public
Law (PL)-104-208, Sec. 124, PL 10-5-277, Sec. 136 of the 1999 Interior Appropriations Act
of 1998). The Wyden Amendment authorizes the BLM to conduct watershed-based
environmental reclamation, through partnerships with States, at abandoned mines, impacted by
contamination originating from non-Federal lands, to improve the viability of and otherwise
benefit the fish, wildlife, and other biotic resources on public land in the watershed.
In addition to the preceding primary authorities, the BLM also relies on the following secondary
authorities applicable to the evaluation and cleanup of abandoned mine lands. These authorities
present standards and requirements that must be observed in the course of AML cleanup and
reclamation.
�� National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.). In the absence of the
application of CERCLA processes, AML projects require compliance with NEPA. NEPA
establishes a process to review the environmental impacts of a proposed major Federal action that
could significantly affect the quality of the environment, as well as the environmental impacts of
possible alternatives to the proposed action. Proposed Federal activities that potentially could
result in environmental impacts at abandoned mines include non-CERCLA environmental
reclamation and physical safety risk mitigation efforts.
�� Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1201, et seq.). After
meeting coal clean-up responsibilities, SMCRA allows States and Tribes with approved SMCRA
AML programs to fund clean-up of non-coal sites. For abandoned mine purposes, the law also
allows reclamation resources to be used for clean-up of non-coal mines that, if not addressed,
would substantially degrade the quality of the environment, prevent or damage the beneficial use
of land or water resources, or endanger the health or safety of the public.

This facilitates the BLM’s partnership opportunities with States, such as cooperative agreements and fund leveraging.

�� Surface Resources Act of 1955 (PL-167) (30 U.S.C. 611-614). This statute authorizes the
BLM to manage the vegetative and surface resources on mining claims located after 1955. The
Act also provides for restriction on the use of unpatented mining claims.
�� Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. 6921-6924). RCRA is
the primary Federal authority for managing hazardous wastes from cradle to grave. Subtitle C of
RCRA regulates the generation, collection, transportation, treatment, storage, and disposal of
hazardous wastes. In 1980, Congress amended RCRA to include the Bevill Amendment
(Section 3001(b) (3) (A) (ii) and 40 CFR 261.4(b)(7)), which effectively exempted wastes from
the extraction and beneficiation of ores and minerals from RCRA subtitle C, regardless of their
chemical composition. A limited set of mining wastes may be eligible under RCRA—if the
abandoned mine (or associated operations) held a subtitle C treatment, storage, or disposal
facility permit or if the abandoned mine generated non-Bevill excluded waste. From a practical
point of view, the Bevill Amendment exempts most tailings and waste rock from RCRA
standards, thus many on-site repository solutions can be utilized for stabilization of mine wastes.
(See Section 9.4.7.2 for more information on repositories).
�� Clean Water Act of 1972 (CWA) (33 U.S.C. 1251 et seq.). The BLM can use the provisions of
the CWA to promote cooperative clean-up efforts at abandoned mine sites impacting water
quality.
�� Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531). Where abandoned mines may
impact endangered or threatened species (e.g., bats or fish), the BLM uses ESA authority to
ensure environmental risks are addressed through ecologically protective reclamation efforts.
�� National Historic Preservation Act of 1966 (NHPA), as amended (16 U.S.C. 470). Where
abandoned mines may impact historic or cultural resources, the BLM uses NHPA authority to
ensure protection of historic and archaeological properties. (See Section 9.3.3.1 for application).
�� Mining Law of 1872, as amended (30 U.S.C. 21, et seq.). This statute allows the location, use,
and patenting of mining claims on public lands.

The EPA's Discontents

— By Kate Sheppard
| Thu Jan. 13, 2011 12:13 PM PST
Enviros and local activists are cheering the Environmental Protection Agency's decision to veto a permit for the Spruce mine in West Virginia, but the coal industry—and a number of coal-friendly legislators—aren't pleased.

National Mining Association president Hal Quinn released this statement :
EPA has taken this unprecedented action—never before contemplated in the nearly 40 years since the enactment of the Clean Water Act—at a time of great economic uncertainty. NMA urges the administration to step back from this unwarranted action and restore trust in the sanctity of lawfully granted and abided by permits and the jobs and economic activity they support.
The EPA's action is unprecedented, that much is true. This marks the first time since the Clean Water Act was enacted in 1972 that a permit was rescinded following the agency's review. But the agency pretty clearly outlined the reasons it is pulling the permit. The agency was also careful to note that it made attempts to work with the coal company, Mingo Logan, to find an alternative dumping plan.

Members of West Virginia's congressional delegation are particularly aggrieved by the EPA's decision. Senior senator, Jay Rockefeller (D) sent a letter to President Obama expressing his "outrage" over the decision ( via E2 Wire ). "This action not only affects this specific permit, but needlessly throws other permits into a sea of uncertainty at a time of great economic distress," wrote Rockefeller. He expressed his hope, however, that the decision would be overturned in court in the future.

The state's new senator, Joe Manchin (D), called the decision "irresponsible and unprecedented."

"It goes without saying, such an irresponsible regulatory step is not only a shocking display of overreach, it will have a chilling effect on investments and our economic recovery," he said. "I plan to do everything in my power to fight this decision."

The state's Democratic House member, Nick Rahall, was also displeased. From his statement :
This veto reaches well beyond one coal mine; it threatens the economic security of every business that relies upon these Clean Water Act permits and that depends upon a fair and consistent permitting process. While this Administration claims that it will not take similar action on any other permit, there is nothing to prevent it, or any future EPA, from reaching back to veto a previously granted permit now that this line has been crossed.

ATSDR

Copper

CAS ID #: 7440-50-8

Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Hepatic (Liver)

Cancer Effects: None

Chemical Classification: Inorganic substances

Summary: Copper is a metal that occurs naturally throughout the environment, in rocks, soil, water, and air. Copper is an essential element in plants and animals (including humans), which means it is necessary for us to live. Therefore, plants and animals must absorb some copper from eating, drinking, and breathing. Copper is used to make many different kinds of products like wire, plumbing pipes, and sheet metal. U.S. pennies made before 1982 are made of copper, while those made after 1982 are only coated with copper. Copper is also combined with other metals to make brass and bronze pipes and faucets. Copper compounds are commonly used in agriculture to treat plant diseases like mildew, for water treatment and, as preservatives for wood, leather, and fabrics.

Community Members

· ToxFAQs™

Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.

· Public Health Statement

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

Toxicological and Health Professionals

· Toxicological Profile

Succinctly characterizes the toxicologic and adverse health effects information for a hazardous substance.

· CERCLA Priority List of Hazardous Substances

Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.

· Minimal Risk Level (MRL)

The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.

· Interaction Profiles

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

Zinc

CAS ID #: 7440-66-6

Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Respiratory (From the Nose to the Lungs)

Cancer Effects: None

Chemical Classification: Inorganic substances

Summary: Zinc is one of the most common elements in the earth's crust. It is found in air, soil, and water, and is present in all foods. Pure zinc is a bluish-white shiny metal. Zinc has many commercial uses as coatings to prevent rust, in dry cell batteries, and mixed with other metals to make alloys like brass, and bronze. A zinc and copper alloy is used to make pennies in the United States . Zinc combines with other elements to form zinc compounds. Common zinc compounds found at hazardous waste sites include zinc chloride, zinc oxide, zinc sulfate, and zinc sulfide. Zinc compounds are widely used in industry to make paint, rubber, dyes, wood preservatives, and ointments.

Community Members

· ToxFAQs™

Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.

· Public Health Statement

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

Toxicological and Health Professionals

· Toxicological Profile

Succinctly characterizes the toxicologic and adverse health effects information for a hazardous substance.

· CERCLA Priority List of Hazardous Substances

Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.

· Minimal Risk Levels (MRL)

The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.

· Interaction Profiles

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

Toxic Substances Portal

Community Members

This section provides information about how hazardous substances can affect your health.

Resources for Community Members

ToxFAQs™

Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.

Public Health Statement

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

Community Environmental Health Presentations

CEHPs include information about specific types of exposures to hazardous substances, exposure routes and pathways, health effects, and how to prevent and minimize exposures.

How do I contact ATSDR?

Further information can be obtained by contacting the ATSDR Information Center at:

Agency for Toxic Substances and Disease Registry
Division of Toxicology and Environmental Medicine
1600 Clifton Road NE, Mailstop F-32
Atlanta, GA 30333
Phone: 1-800-CDC-INFO 888-232-6348 (TTY)
Email: cdcinfo@cdc.gov

www.klamathbasincrisis.org - The Klamath Basin Water Crisis

Tulelake voters slam KBRA nearly 8-2 , here . Abraham Lincoln said, "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time."

U.S Congressman Wally Herger: Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land, posted to KBC 1/7/11. "...as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands."

Dodd-Frank Act Creates Important Rights for Whistleblowers
The Dodd-Frank Act gives whistleblowers with independent knowledge of a financial fraud by any company required to report to the SEC the potential of a big pay-out - up to 30% of any amount recovered over $1 million.

January 07, 2011 /24-7PressRelease/ -- Each year, corporate fraud costs the US government millions of dollars. In many cases, the fraud would never be discovered if it were not for the courageous acts of employees and others who come forward and report the fraud to the Securities and Exchange Commission (SEC).

In recognition of the importance of whistleblowers, a recent law passed by Congress includes key provisions to encourage more whistleblowers to report fraud by offering financial incentives to do so. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, those with independent knowledge of a financial fraud committed by a business required to report to the SEC or the US Commodity Futures Trading Commission (CFTC) may be entitled to a percentage, or "bounty," of the money recovered. The Act sets the bounty at 10 to 30 percent of any amount over $1 million recovered in a judicial or administrative action against the wrongdoer.

To be eligible for the bounty, the whistleblower must:
- Report the information to the SEC or CFTC
- The information must be derived from the independent knowledge or analysis of the whistleblower
- The government cannot have known about the fraud from any other source

The final amount awarded to a whistleblower under the Dodd-Frank Act is discretionary; the SEC or CFTC is given the authority to give a bounty according to the "significance" of the information provided and the level of assistance given by the whistleblower.

The Act also includes a provision protecting the whistleblower's identity. Under the law, the whistleblower can maintain anonymity by filing a claim through his or her lawyer. The whistleblower is not required to reveal his or her identity until it is known whether the information he or she provided will lead to a recovery and, subsequently, a bounty.

Act Expands on False Claims Act Qui Tam Actions

The Dodd-Frank Act was modeled after another important law for whistleblowers - the False Claims Act. Under the False Claims Act, whistleblowers who have independent knowledge of a financial fraud perpetuated against the government can bring a special type of lawsuit known as a "qui tam" action. In a qui tam action, the whistleblower is known as a "relator" and brings the lawsuit on behalf of the federal government. Whistleblowers who bring successful qui tam actions are entitled to a percentage of the amount recovered, which is typically 15 to 25 percent.

An important difference between the Dodd-Frank Act and False Claims Act is the scope of the law. The False Claims Act only applies to financial fraud committed against the government. The Dodd-Frank Act, on the other hand, is much broader and applies to any type of financial fraud committed by a company that falls within the jurisdiction of the SEC or CFTC.

The Dodd-Frank Act also broadly defines who is eligible to bring a whistleblower claim. As the law is written, nearly anyone who has ever had dealings with the company may qualify, including current and former employees, customers, suppliers and even board members. The SEC, however, has proposed a rule to limit the right of certain actors to bring claims, including those who received the information as a result of their duties to respond to the wrongdoing.

Wall Street, Other Businesses Worried

Not surprisingly, companies are not very excited about the Dodd-Frank Act. The biggest complaint against the law is that it undermines all of the money, time and resources companies expended creating internal compliance and complaint procedures for reporting fraud and abuse, as required under Sarbanes-Oxley. Companies fear that the potentially large financial incentives provided under the Act will encourage employees to file their complaints directly with their own attorneys or the SEC and not internally.

And, at least initially, it appears they are right: according to a Wall Street Journal report, the number of whistleblower suits filed after the passage of Dodd-Frank increased ten-fold. There also have been huge bounties paid out recently to whistleblowers who filed qui tam actions under the False Claims Act. For example, Cheryl Eckard, the whistleblower in the GlaxoSmithKline fraud case, is set to receive a $96 million payout for her qui tam action against the company. In the 2009 settlement between the government and Pfizer, the whistleblower received $80 million of the proceeds. In therecently settled Allergan case for the drug maker's aggressive off-label marketing campaign for Botox, the whistleblowers received $37 million.

Big business was hoping that the SEC would issue a rule requiring whistleblowers to first file an internal complaint before filing a claim with the SEC. However, the most the SEC was willing to do was propose a rule "encouraging" whistleblowers to first use the company's internal complaint procedure.

The SEC also proposed a rule that if an employee reports information to an internal compliance department first, then the information still will be considered "original" so long as the employee files a claim with the SEC within 90 days. In the past, if a whistleblower gave the information to an internal compliance department first, then the information was no longer considered original and the whistleblower would be ineligible for any cash rewards under the False Claims Act.

Filing a Whistleblower Action

The SEC is still in the rule-making process for implementing the provisions of the Dodd-Frank Act. The last day for public comments on the proposed rule was December 17 and the agency has stated that it expects the final rules to be in effect by the beginning of 2011.

Until these rules are finalized, it is not yet clear what process whistleblowers will have to follow in order to file a claim under the Act. In the meantime, those with independent knowledge of a fraud committed against the government have the option for filing a qui tam action.

Qui tam actions are filed in federal district court. In addition to filing the claim, claimants also are required to include a statement disclosing all of the information the claimant has of the fraud. Once the claim is filed, it is placed under seal for 60 days while the Department of Justice investigates the claim to determine if the government will join the action. The DOJ also may attempt to settle the claim, or in the alternative, also may seek to have it dismissed. The federal government does not have to join the claim for the qui tam action to proceed; however, having the government join the claim can make it stronger.

In general, to be eligible to file a qui tam claim, the information of the fraud cannot have been obtained from a public source or otherwise known to the government. If the information is from a public source, then the claimant still may be able to bring the qui tam action so long as he or she is an "original source" of the information. This means that the claimant has "direct and independent" knowledge of the information and the claimant provided the information to the government before filing the qui tam action.

Some of the most common types of fraud that may form the basis of a whistleblower claim include:
- Mischarging for goods or services not produced or delivered
- Off-label marketing of pharmaceuticals
- False negotiation
- Defective pricing
- Product and service substitution
- False certification of entitlement to government benefits

Current and former employees are the most common people to bring whistleblower claims, but they also may be brought by subcontractors, state and local governments, public interest groups and even corporations.

Conclusion

Those who are considering filing a whistleblower action under the False Claims Act or Dodd-Frank Act should contact an experienced attorney first. A lawyer knowledgeable in bringing these types of claims can help guide the individual through the claims process and explain their rights and obligations as a whistleblower.

For more information on qui tam actions, contact an experienced whistleblower attorney today.

Article provided by Watkins, Lourie, Roll & Chance, PC
Visit us at www.wlrlawfirm.com

A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.

The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.

Contact: Lynn Yarris
lcyarris@lbl.gov
510-486-5375
DOE/Lawrence Berkeley National Laboratory

New glass tops steel in strength and toughness

Wednesday, January 12, 2011

Crumbling Infrastructure Threatens Nation's Water Supply

DOE ends Fed preemption of water rules

Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff

Historic Reading of Constitution on House Floor

In one of the first major actions in the new 112th Congress, the House passed a rule this week reaffirming the commitment to limit the Chamber's actions to only those explicitly authorized by the U.S. Constitution. This rule requires that every introduced bill cite a specific provision in the Constitution that authorizes Congress to take the proposed action. In addition, House Republicans reasserted the essential role of the Constitution by reading it in its entirety on the House floor for the first time in history. Too often, Congress spends its time legislating on matters that it has no authority over and in certain cases, as with ObamaCare's individual health care mandate, passing laws that are simply unconstitutional. I believe we could avoid a great deal of unnecessary bureaucracy and intrusive regulation simply by returning to the constitutional concept of limited federal powers and upholding the 10th amendment, which declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Millions of Americans are clearly fed up with Congress exceeding its constitutional authority. I believe a renewed focus on the Constitution is long overdue and will help the House better represent the will of the people. - Congressman Wally Herger

Rep. Mike Simpson (R-Idaho) is chairman of the Interior, Environment and Related Agencies subcommittee of the full Appropriations Committee. He was the ranking GOP member of the panel in the last Congress.

Simpson's office, in a statement, said he will be “tasked with reducing spending levels that have grown out of control in recent years under Democrat control,” and that Simpson has his “eyes set on EPA” in particular.

“The EPA is the scariest agency in the federal government, an agency run amok,” Simpson said in a statement Friday.

New Guidance on CWA Jurisdiction Will Be Out for Public Review

     “In the absence of updated regulations, courts will have
     to make ad hoc determinations that run the risk of
     transforming scientific questions into matters of law.
     That is not the system Congress intended.”

          —Justice Breyer dissenting in Carabell/Rapanos

see PACIFIC LEGAL FOUNDATION

PLF has made its mark as the nation's leading freedom fighter by winning important legal precedents in state and federal courts. Because it chooses cases where constitutional rights are at risk, PLF has made repeat appearances before the United States Supreme Court—and won several major cases—a record of success unmatched by any other public interest legal organization.

Current Supreme Court Cases

Property Rights

The Fifth Amendment Applies to Beachfront Land, Too

Walton County v. Save Our Beaches, Inc.

Environmental Regulations

Costs and benefits must be weighed in environmental regulation

Entergy Corp. v. EPA

Promoting Regulation That Is Pro-jobs and Pro-environment

Southeast Alaska Conservation Council v. Corps of Engineers

Individual Rights

Upholding the right of public employees not to pay for lawsuits that don't concern them

Locke v. Karass
Oregon justices defy United States Supreme Court to expand tort law

Philip Morris v. Williams

Discrimination and Preference

Racial gerrymandering is unconstitutional

Bartlett v. Strickland

PLF defends Michigan Civil Rights Initiative

Coalition to Defend Affirmative Action v. Granholm; Cantrell v. Granholm

Race-based exclusions on the use of public land are impermissible

State of Hawaii v. Office of Hawaiian Affairs

Landmark Supreme Court Victories
Nollan v. California Coastal Commission (1987) One of the most important property rights decisions in the Supreme Court's history, Nollan outlawed an egregious form of “shakedown” by land-use regulators; specifically, it said government may not condition the granting of a building permit on the landowner making some payment or surrender of property that has no connection to the impact of the proposed building project.

Keller v. State Bar of California (1990) A First Amendment case holding that a trade or professional organization to which professionals are legally bound to belong may not use their mandatory dues to fund ideologically based lobbying.

Suitum v. Tahoe Regional Planning Agency (1997) This ruling stopped regulators from demanding that an elderly, wheelchair-bound widow sell her minuscule transferable development rights in a nonexistent market before being able to seek judicial relief for denial of her right to build a home.

Palazzolo v. Rhode Island (2001) This ruling held that government is not relieved from its Fifth Amendment obligation to provide compensation for excessive regulations on private property merely because the property has changed hands since the regulations first took effect. PLF defended landowner Anthony Palazzolo who challenged the Rhode Island Coastal Resources Management Council.

Rapanos v. United States (2006) This decision narrowed the scope of federal Clean Water Act jurisdiction, so that landowners who are not close to “navigable waters” may not be subjected to federal micro managing of their property.

Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (2007) Held that school districts that voluntarily adopt student assignment plans that rely on race to determine which schools certain children may attend, violate the Equal Protection Clause of the United States Constitution. As amicus, PLF attorneys participated as second chair at oral argument assisting Meredith's attorney.
Over the holidays a notice was posted on the Office of Management and Budget's reginfo.com website that Clean Water Protection Guidance had been received. This means that EPA has forwarded guidance to OMB for interagency review. EPA is apparently proposing guidance to assist field staff in identifying waters that are jurisdictional under the Clean Water Act.
http://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agency
Cd=2000&Image58.x=36&Image58.y=23&Image58=Submit

To recap briefly: In the spring of 2006 the Supreme Court Carabell/Rapanos decision created a great deal of uncertainty over which waters were subject to the Clean Water Act. It was a 4-1-4 decision. This split was unique in the history of Supreme Court decisions because the ‘1' (Justice Kennedy) sided with the plurality (Justice Scalia) in returning the case to the lower courts, but with the dissent (Justice Stevens) on many other points while describing his independent framework for a “significant nexus” test to use in determining jurisdiction. After analysis of this very divided opinion the U.S. Department of Justice's determined that a water body falls under the Clean Water Act if it meets either the plurality (Scalia) or Kennedy tests for jurisdiction. See ASWM Analysis of Supreme Court Decision in Carabell/Rapanos http://www.aswm.org/fwp/aswm_paper.pdf

In June of 2007 EPA and the U.S. Army Corps of Engineers issued guidance to help field staff determine which waters were jurisdictional. Following a public comment period they made some minor adjustments late in 2008. http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html This is the guidance currently in place. The guidance recently sent to OMB would also address jurisdiction: whether it would expand on the existing guidance or replace it is unknown and will remain so until the anticipated opportunity for public review and comment occurs and the guidance is finalized—sometime in the coming months.

The existing guidance is useful in identifying some broad considerations that should be included in making jurisdictional determinations that incorporate the constraints on jurisdiction created by Carabell/Rapanos. However, it provides little scientific or technical direction that would create certainty and specificity. The existing guidance requires the application of a great deal of best professional judgment on a case by case basis. This means there has and will continue to be variability and in what waters are identified as jurisdictional around the country.

What guidance can do is limited by law.   Guidance cannot alter regulations. In this case it can only further define existing regulations that describe waters regulated under the Clean Water Act as constrained by the Carabell/Rapanos and (earlier) SWANCC decisions. Guidance is a good first step, but rulemaking will be required for any truly substantial effort to clarify and simplify criteria for identifying waters of the U.S. under the Clean Water Act. In a recent letter to the Council on Environmental Quality Chair Nancy Sutley a group of leading sportsmen and conservation organizations urged the Administration to pursue rulemaking to provide a revised definition of “waters of the U.S.” that is consistent with both law and science. They are not alone. In the Carabell/Rapanos decisions both Justice Roberts and Justice Breyer called for rulemaking. Their request was echoed by many industry groups including the National Association of Homebuilders and the National Stone, Sand and Gravel Association.

Endangered Species Act Reform

Alliance for the Wild Rockies v. Norton

Alsea Valley Alliance v. Lautenbacher

Animal Welfare Institute v. Martin

Building Industry Association of the Bay Area (BIABA) and Bay Planning Coalition (BPC) v. National Marine Fisheries Service (NMFS)

Building Industry Association of the Bay Area v. United States Fish and Wildlife Service

Building Industry Association of Washington v. NOAA

Butte Environmental Council v. US Army Corps of Engineers

California Cattlemen's Association et al. v. Kempthorne

Center for Biological Diversity v. Kempthorne

Colorado River Cutthroat Trout v. Salazar

Conservancy of Southwest Florida v. United States Fish and Wildlife Service

Florida Home Builders Association v. United States Fish and Wildlife Service

Florida Home Builders Association v. United States Fish and Wildlife Service

Friends of Blackwater v. Salazar

In re Petition of the Coalition of Labor, Agriculture, and Business (COLAB)

Kern County Water Agency v. Watershed Enforcers

Natural Resources Defense Council v. Salazar

Otay Mesa Prop. LP v. U.S. Department of Interior

Perdido Property Rights, Inc. v. United States Fish and Wildlife Service

PLF v. U.S. Fish and Wildlife Service

Riverside County Farm Bureau v. United States Fish and Wildlife Service

Save the Plastic Bag Coalition v. City of Manhattan Beach

Stevens County v. Loon Lake Property Owners Association

Stewart & Jasper v. Salazar

Strahan v. Holmes

Washington Farm Bureau v. Salazar

Western Watersheds Project v. Hall

Yolo County Farm Bureau v. United States Fish and Wildlife Service

Clean Water Act Cases – Including Wetlands

Acquest Wehrle LLC v. United States

Amelia Venture Properties v. Environmental Protection Agency

American Farm Bureau Federation v. Army Corps of Engineers

Barnum Timber Co. v. Environmental Protection Agency

Barnum Timber Co. v. North Coast Regional Water Quality Control Board

Carabell v. United States Army Corps of Engineers

Entergy Corp. v. EPA

Fairbanks North Star Borough v. Corps of Engineers

Great Northwest, Inc. v. United States Army Corps of Engineers

Home Builders Association of Northern California v. Association of Bay Area Governments

National Association of Home Builders v. United States Army Corps of Engineers

National Environmental Defense Center v. Environmental Quality Commission

Sackett v. Environmental Protection Agency

Smith Farm v. Environmental Protection Agency

United States v. Johnson

Ensuring Responsible Management of Public Lands and Natural Resources

California Farm Bureau Federation v. California Department of Fish and Game

Center for Biological Diversity v. United States Department of the Interior

National Parks & Conservation Association v. Bureau of Land Management

Protecting Freedom from Environmental Extremism

Brown v. Adams

Chamber of Commerce of the United States of America v. United States Environmental Protection Agency

Comer v. Murphy Oil Co.

Communities for a Better Environment v. South Coast Air Quality Management District

Connecticut v. American Electric Power Co.

JHP LLC v. Japp

Native Village of Kivalina v. Exxon Mobil Corp

Northwest Environmental Defense Center v. Brown

San Luis & Delta-Mendota Water Authority v. Locke

Wide Scope of Stauffer Chemical Co.'s Operations Shown in SEC Application

Chem. Eng. News , 1953 , 31 (36), pp 3632–3642 DOI: 10.1021/cen-v031n036.p3632 Publication Date: September 1953 Copyright © 1953 AMERICAN CHEMICAL SOCIETY
FOR the first time in its 68-year history, Stauffer Chemical Co., is publicly financing through the issuance of $15 million deb-entures and 325,000 shares of common stock with a par value of $10. The securities will be offered by a banking syndicate in New York headed by Morgan Stanley and Co. (details on page 3694).

In its prospectus accompanying the stock offer, Stauffer throws a good deal of light on its chemical operations which heretofore have not been known. Since 1946, for example, it has added $41.8 million to plants and equipment through a program of construction and acquisition. It is a basic producer of carbon disulfide, sulfuric acid, carbon tetrachloride, caustic soda, chlorine, and agricultural chemicals.

Substantial amounts of these basic items are used by Stauffer in processing a diversiiied list of other chemicals, and the remainder are sold to the chemical, rayon, cellophane, rubber, petroleum, glass, soap, paper, textile, drug, food, and mining ...

2000 November 13: On November 13, 2000 Novartis and AstraZeneca merged their agribusinesses to form Syngenta, the first global group focusing exclusively on agribusiness.

1999 Astra AB of Sweden and Zeneca Group PCL of UK merge, becoming AstraZeneca.

1998 Novartis announces the formation of NADI, the Novartis Agricultural Discovery Institute, one of the largest single research endeavours dedicated to agricultural genomics research and development.

1997 Zeneca attains the rights to chlorothalonil from ISK.

Zeneca acquires Mogen, a Netherlands-based plant Biotechnology Company.

Novartis attains the crop protection division of Merck & Co, adding the insecticide abamectin to its list of products.

1996 Zeneca offers the first GM tomato puree to customers. Tomatoes were enhanced to stay ripe in the field longer, resulting in better processing.

Zeneca Seeds and Cosun/ Royal VanderHave Group form the joint venture company Advanta.

Zeneca's strobilurin fungicide Amistar® achieves registration.

Sandoz and Ciba merge to form Novartis in one of the largest corporate mergers in history.

1994 Zeneca is established after ICI demerges three of its businesses (Pharmaceuticals, Agrochemicals and Specialties) beginning in '93.

1990 Ciba-Geigy AG acquires Maag Group.

1987 ICI acquires Stauffer Chemical Company.

1985 ICI launches its insecticide Karate®.

1983 ICI Seeds is formed to add seed-breeding capability to the business.

1980 Ciba establishes a special biotechnology unit.

Sandoz acquired the Zaadunie group of Holland. Sluis & Groot (S&G)was one of the prominent marketing companies of Zaadunie. S&G is one of the three brandnames within Syngenta Seeds.

1978 Introduction of systemic fungicide Ridomil by Ciba-Geigy.

1976 Sandoz attains Northrup King.

1975 Sandoz acquires Rogers Seed Company, moving into the seed market.

1974 Ciba expands into the seeds business with the acquisition of the US-based Funk Seeds International.

1973 PPL becomes fully independent from ICI agricultural division.

1970 ICI establishes ICI Americas Inc.

Ciba and Geigy merge to form Ciba-Geigy.

1964 PPL becomes apart of ICI's Agriculture Division.

1956 Geigy introduces triazine-based herbicides (Simazine, Atrazine) allowing farmers to control weeds for the first time.

1954 A group of chemicals originally discovered in 1947 were re-evaluated by ICI, leading to the discovery and development of diquat and paraquat.

1953 PPL becomes wholly owned by ICI.

1940 Dr. Bill Templeman of ICI, at Jealott's Hill, discovers the selective properties of alphanapthylacetic acid, leading to the synthesis of the herbicides MCPA AND 2,4-D.

1939 Paul Müller, a Geigy researcher, discovers the insecticidal efficacy of DDT.

1937 Plant Production Limited (PPL) is formed as a fifty-fifty joint company between ICI and Cooper McDougall & Robertson Ltd.

1935 Geigy production of insecticides.

1928 ICI begins work on the Agricultural Research Station at Jealott's Hill in the UK.

1926 Imperial Chemical Industries is formed with merger of Brunner Mond Ltd, Nobel Industries, British Dyestuffs Coronation Ltd, and United Alkali Co. Ltd.

1884 Ciba is established.

1876 Sandoz is founded.

1758 Geigy is founded.

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When All Appropriate Inquiry Isn't Enough:

Court Highlights the Significance of Other Factors in the Bone Fide Prospective Purchaser Defense
Contributor: Bryan Cave
SUMMARY: Anyone who has been involved in a real estate transaction relating to commercial or industrial property has likely dealt with conducting “All Appropriate Inquiry” into the site, which generally includes the preparation of a Phase I Environmental Site Assessment and may include Phase II sampling work. All Appropriate Inquiry (“AAI”) is one necessary component of the “bona fide prospective purchaser” (“BFPP”) defense established under the 2002 Brownfields amendments to Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The BFPP defense is intended to protect property owners from liability for contamination that clearly occurred prior to their period of ownership. However, conducting AAI is not the only prerequisite to establishing a BFPP defense. The BFPP requirements beyond AAI are highlighted in , Ashley II of Charleston, LLC v. PCS Nitrogen, et al., 2010 U.S. Dist. LEXIS 104772 (D.S.C. Sep. 30, 2010), one of the first cases to address in detail the BFPP defense.

In this case, Ashley purchased property that had a long history of industrial use. In conjunction with that purchase, Ashley's environmental consultant performed Phase I and Phase II work. After the purchase, Ashley demolished many of the above-ground improvements on the property. When liability for contamination at the property was addressed, a significant battle between several potentially responsible parties arose. Ashley sought to take advantage of the BFPP defense to avoid liability. The elements of the BFPP defense are, in summary: (a) disposal of hazardous substance occurred prior to acquisition; (b) the purchaser conducted AAI; (c) the purchaser provided all required notices with respect to the discovery or release of any hazardous substance; (d) the purchaser exercises appropriate care with respect to hazardous substances found; (e) the purchaser cooperates with agencies; (f) the purchaser complies with institutional controls; (g) the purchaser complies with information requests or administrative subpoena; (h) the purchaser is not affiliated with a potentially responsible party. In the end, the court closely scrutinized each element of the test and determined that Ashley was not a BFPP.

Chesebrough-Pond's USA, Inc. represents such cornerstone household items as Vaseline Petroleum Jelly, Pond's beauty creams, Q-Tips swabs, and Ragú spaghetti sauce. With roots dating back to the turn of the century, the company had experienced constant growth and profitability, until it was destabilized by its acquisition of the Stauffer Chemical Company, which in turn led to its takeover by Unilever N.V. in 1986.

Chesebrough made a surprising $1.25 billion bid for Stauffer Chemical Company in 1985. Makers of weed killers, pesticides, and flame retardants, Stauffer had been suffering from a lackluster performance at the time.

Lucas announces new House Ag Committee

Chairman-elect Frank Lucas (R-OK) named six members to serve as subcommittee chairmen of the House Agriculture Committee Dec. 21. He also released a complete list of the Republican roster for the 112th Congress and named Rep. Bob Goodlatte (R-VA) as vice chairman of the full committee.

"Our subcommittee chairmen have demonstrated a commitment to ensuring the success of American agriculture and rural economies. They are ready to join me in addressing the challenges that farmers, ranchers, and small businesses face across rural America. The next year will be an exercise in educating our freshmen members on both sides of the aisle, providing oversight of the administration and building a strong working relationship as we prepare to reauthorize the farm bill in 2012," said Lucas.

Lucas designated the following Subcommittee Chairmen and their jurisdictions (listed alphabetically by subcommittee name):

--Rep. Glenn "GT" Thompson (PA-5), Conservation, Energy, and Forestry.

Jurisdiction: Soil, water, and resource conservation, small watershed program, energy and bio-based energy production, rural electrification, forestry in general and forest reserves other than those created from the public domain.

--Rep. Jeff Fortenberry (NE-1), Department Operations, Oversight, and Credit.

Jurisdiction: Agency oversight, review and analysis, special investigations, and agricultural credit.

--Rep. K. Michael Conaway, (TX-11), General Farm Commodities and Risk Management.

Jurisdiction: Program and markets related to cotton, cottonseed, wheat, feed grains, soybeans, oilseeds, rice, dry beans, peas, lentils, the Commodity Credit Corporation, risk management, including crop insurance, commodity exchanges, and specialty crops.

--Rep. Tom Rooney (FL-16), Livestock, Dairy, and Poultry.

Jurisdiction: Livestock, dairy, poultry, meat, seafood and seafood products, inspection, marketing, and promotion of such commodities, aquaculture, animal welfare, and grazing.

--Rep. Jean Schmidt (OH-2), Nutrition and Horticulture.

Jurisdiction: Food stamps, nutrition and consumer programs, fruits and vegetables, honey and bees, marketing and promotion orders, plant pesticides, quarantine, adulteration of seeds and insect pests, and organic agriculture.

--Rep. Timothy V. Johnson (IL-15), Rural Development, Research, Biotechnology, and Foreign Agriculture.

Jurisdiction: Rural Development, farm security and family farming matters, biotechnology, foreign agriculture assistance, and trade promotion programs, generally.

Republican members of the agriculture committee are Chairman-elect Frank D. Lucas (OK), Vice Chairman-elect Bob Goodlatte (VA), Timothy V. Johnson (IL), Steve King (IA), Randy Neugebauer (TX), K. Michael Conaway (TX), Jeff Fortenberry (NE), Jean Schmidt (OH), Glenn Thompson (PA), and Tom Rooney (FL). New members include Rick Crawford (AR), Scott DesJarlais (TN), Renee Elmers (NC), Stephen Fincher (TN), Bob Gibbs (OH), Chris Gibson (NY), Vicky Hartzler (MO), Tim Huelskamp (KS), Randy Hultgren (IL), Reid Ribble (WI), Martha Roby (AL), Bobby Schilling (IL), Austin Scott (GA), Steve Southerland (FL), Marlin Stutzman (IN), and Scott Tipton (CO).

EPA lets tribes talk

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Safeguarding environment and heritage
Tools to Address Tenant Liability Concerns

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NPL Deletion

•NCP states that a site may be deleted from the NPL where no further response is appropriate
•EPA interprets this criteria to mean that a site may be deleted when all removals and remedial actions are completed
–all cleanup goals have been achieved, and
–all institutional controls are in place
•Note that Operation &Maintenance (O&M) is not defined as a response by the NCP; therefore. a site with continuing O&M can be deleted.

•EPA must determine, in consultation with the State, that oneof the following criteria has been met:
��Responsible or other parties have implemented all response actions required;
��All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
��The remedial investigation has shown that the release(s) poses no significant threat to public health or environment, and therefore, taking of remedial measures is not appropriate.

•The Deletion process may begin once a site has achieved the site construction completion milestone
•Regional staff prepare a deletion docket containing all of the pertinent information supporting the deletion recommendation including the letter of concurrence from the State. A site can not be deleted if the state does not concur
•Deletion dockets should be available to the public at the EPA Regional office and a local repository. Docket information should also be electronically available or referenced in the Federal Docket Management System (FDMS)
•Regions publish the Notice of Intent to Delete (NOID) in the Federal Register (FR). The NOID informs the public of EPA’s intention to delete a site from the NPL. The NOID provides for a 30 day public comment period

•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original notice

•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original notice

U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Federal Facilities Restoration & Reuse Office
Website:http://www.epa.gov/fedfac
Office of Superfund Remediation & Technology Innovation
Website:http://www.epa.gov/superfund
Office of Enforcement and Compliance Assurance
Federal Facilities Enforcement Office
Website: http://www.epa.gov/compliance/federalfacilities
Federal Facilities Environmental Stewardship and Compliance Assistance Center
Website: http://www.fedcenter.gov

Wednesday, January 5, 2011

Water Infrastructure Financing: History of EPA Appropriations

Claudia Copeland
Specialist in Resources and Environmental Policy

The principal federal program to aid municipal wastewater treatment plant construction is authorized in the Clean Water Act (CWA). Established as a grant program in 1972, it now capitalizes state loan programs. Authorizations since 1972 have totaled $65 billion, while appropriations have totaled $85 billion. It has represented 25-30% of total funds appropriated to the Environmental Protection Agency (EPA) in recent years.

In appropriations legislation, funding for EPA wastewater assistance is contained in the measure providing funds for the Department of the Interior, Environment, and Related Agencies, which includes EPA. Within the portion of that bill which funds EPA, wastewater treatment assistance is specified in an account now called State and Tribal Assistance Grants (STAG). Three trends in the funding of this account are most prominent: inclusion of non-infrastructure environmental grants to states, beginning in FY1993; increasing number and amount of special purpose grants since FY1989; and the addition of grant assistance for drinking water treatment projects in FY1997. This report summarizes, in chronological order, congressional activity to fund items in this account since 1987.

Prior to the 1987 amendments, wastewater treatment assistance was provided in the form of grants made to municipalities. The federal share of project costs was generally 55%; state and local governments were responsible for the remaining 45%. The 1987 amendments altered this arrangement by replacing the traditional grant program with one that provides federal grants to capitalize state clean water loan programs, or state revolving funds (SRFs). Appropriations for the clean water SRF program through FY2010 have totaled $33 billion. As a general matter, states and cities support the program changes made by the 1987 amendments and the shift to a loan program that was intended to provide long-term funding for water quality and wastewater construction activities. However, the change means that local communities now are responsible for 100% of projects costs, rather than 45%, because they are required to repay loans to states. The greater financial burden of the act's loan program on some cities has caused some to seek continued grant funding.

This has been particularly evident in the appropriations process where, in recent years, Congress has reserved as much as 30% of funds in the STAG account for special purpose grants directed to specified communities. Since FY2000, appropriators have awarded earmarks to a larger total number of projects, resulting in more communities receiving such grants, but at the same time receiving smaller amounts of funds, on average. Most of the funded projects are not authorized in the Clean Water Act or the Safe Drinking Water Act. State water quality officials, state infrastructure financing officials, and EPA have objected to this practice, since it reduces the amount of funding for state SRF programs. Since FY1997, the STAG account also has been used to fund a drinking water SRF grant program established by Congress in 1996. Appropriations for the drinking water SRF program through FY2010 have totaled $14.5 billion.

The statutory protections found at CERCLA § 107(r)(1) and §101(40) are self-implementing, and EPA generally will not be involved with facility-specific transactions or determinations of BFPP status. There may be instances on a site-specific basis, however, where EPA determines that it would be necessary and appropriate to address a tenant’s liability concerns through an existing tool or policy (e.g., a comfort/status letter or a prospective lessee agreement).7 In addition, EPA may use such tools on a case-by-case basis where it is appropriate to address liability concerns of tenants not covered by this guidance.

Title 40: Protection of Environment
PART 27—PROGRAM FRAUD CIVIL REMEDIES

§ 27.1   Basis and purpose.

(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99–509, sections 6101–6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801–3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.

(b) Purpose. This part (1) establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to the Environmental Protection Agency, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.

1 Section 120(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499) provides:
(b) LIMITED GRANDFATHER.—Section 120 of CERCLA shall not apply to any response action or remedial action for which a plan is under development by the Department of Energy on the date of enactment of this Act [October 17, 1986] with respect to facilities—
(1) owned or operated by the United States and subject to the jurisdiction of such Department;

(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with the Administrator of the Environmental Protection Agency.

Effective Date Section 121(b) of Pub. L. 99-499 provided that: ``With respect to section 121 of CERCLA [this section], as added by this section-- ``(1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the `ROD') was signed, or the consent decree was lodged, before date of enactment [Oct. 17, 1986]. ``(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act [Oct. 17, 1986], the Administrator shall certify in writing that the portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA. Any ROD signed before enactment of this Act [Oct. 17, 1986] and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.''

In Levins Metal Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987), where the court applied California state law in determining successor liability under CERCLA. There, the court explained that when the issue deals with the "capacity to be sued" rather than the "imposition of liability," state law applies.

We have recognized two other exceptions to the general rule: (1) when review is necessary to prevent miscarriage of justice or to preserve the integrity of the judicial process, and (2) when a new issue arises during a pending appeal because of a change in the law. See Bolker, 760 F.2d at 1042.

Presidential Documents

Federal Register
Vol. 47, No. 137
Friday, July 16, 1982

Title 3 -- Executive Order 12372 of July 14, 1982

The President Intergovernmental Review of Federal Programs

By the authority vested in me as President by the Constitution and laws of the United States of America, including Section 401(a) of the Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4231(a)) and Section 301 of Title 3 of the United States Code, and in order to foster an intergovernmental partnership and a strengthened federalism by relying on State and local government coordination and review of proposed Federal financial assistance and direct Federal development, it is hereby ordered as follows:

Section 1. Federal agencies shall provide opportunities for consultation by elected officials of those State and local governments that would provide the non-Federal funds for, or that would be directly affected by, proposed Federal financial assistance or direct Federal development.

Sec. 2. To the extent the States, in consultation with local general purpose governments, and local special purpose governments they consider appropriate, develop their own processes or refine existing processes for State and local elected officials to review and coordinate proposed Federal financial assistance and direct Federal development, the Federal agencies shall, to the extent permitted by law:

(a) Utilize State processes to determine official views of State and local officials.

(b) Communicate with State and local elected officials as early in the program planning cycle as is reasonably feasible to explain specific plans and actions.

(c) Make efforts to accommodate State and local elected officials' concerns with proposed Federal financial assistance and direct Federal development that are communicated through the designated State process. For those cases where the concerns cannot be accommodated, Federal officials shall explain the bases for their decision in a timely manner.

(d) Allow the States to simplify and consolidate existing Federally required State plan submissions. Where State planning and budgeting systems are sufficient, and where permitted by law, the substitution of State plans for Federally required State plans shall be encouraged by the agencies.

(e) Seek the coordination of views of affected State and local elected officials in one State with those of another State when proposed Federal financial assistance or direct Federal development has an impact on interstate metropolitan urban centers or other interstate areas. Existing interstate mechanisms that are redesignated as part of the State process may be used for this purpose.

(f) Support State and local governments by discouraging the reauthorization or creation of any planning organization which is Federally-funded, which has a Federally-prescribed membership, which is established for a limited purpose, and which is not adequately representative of, or accountable to, State or local elected officials.

Sec. 3. (a) The State process referred to in Section 2 shall include those where States delegate, in specific instances, to local elected officials the review, coordination, and communication with Federal agencies.

(b) At the discretion of the State and local elected officials, the State process may exclude certain Federal programs from review and comment.

Sec. 4. The Office of Management and Budget (OMB) shall maintain a list of official State entities designated by the States to review and coordinate proposed Federal financial assistance and direct Federal development. The Office of Management and Budget shall disseminate such lists to the Federal agencies.

Sec. 5. (a) Agencies shall propose rules and regulations governing the formulation, evaluation, and review of proposed Federal financial assistance and direct Federal development pursuant to this Order, to be submitted to the Office of Management and Budget for approval.

(b) The rules and regulations which result from the process indicated in Section 5(a) above shall replace any current rules and regulations and become effective April 30, 1983.

Sec. 6. The Director of the Office of Management and Budget is authorized to prescribe such rules and regulations, if any, as he deems appropriate for the effective implementation and administration of this Order and the Intergovernmental Cooperation Act of 1968. The Director is also authorized to exercise the authority vested in the President by Section 401(a) of that Act (42 U.S.C. 4231(a)), in a manner consistent with this order.

Sec. 7. The Memorandum of November 8, 1968, is terminated (33 Fed. Reg. 16487, November 13, 1968). The Director of the Office of Management and Budget shall revoke OMB Circular A-95, which was issued pursuant to that Memorandum. However, Federal agencies shall continue to comply with the rules and regulations issued pursuant to that Memorandum, including those issued by the Office of Management and Budget, until new rules and regulations have been issued in accord with this Order.

Sec. 8. The Director of the Office of Management and Budget shall report to the President within two years on Federal agency compliance with this Order. The views of State and local elected officials on their experience with these policies, along with any suggestions for improvement, shall be included in the Director's report.

THE WHITE HOUSE
July 14, 1982

1 Section 121(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499) provides:
(b) EFFECTIVE DATE.—With respect to section 121 of CERCLA, as added by this section—
(1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the ‘‘ROD’’) was signed, or the consent decree was lodged, before date of enactment [October 17, 1986].
(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act, the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA.
Any ROD signed before enactment of this Act and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.
IRON MOUNTAIN MINE EPA ID: CAD980498612 OU 01 REDDING, CA 10/03/1986

DECLARATIONS:
CONSISTENT WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (CERCLA) AND THE NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN (NCP) 40 CFR PART 300 ET.SEQ., I HAVE DETERMINED THAT THE OPERABLE UNIT REMEDY PREVIOUSLY IDENTIFIED IS A COMPONENT OF WHAT WILL BE THE APPROPRIATE FUND-FINANCED ACTION FOR THIS SITE IN ACCORDANCE WITH SECTION 300.68 (J) OF THE NCP. THESE ARE COMPONENTS OF A FINAL EPA REMEDY THAT WILL PROVIDE ADEQUATE PROTECTION OF THE PUBLIC HEALTH AND WELFARE AND THE ENVIRONMENT

Disputing Jurisdiction When You Are Sued for Debt
By Kenneth Gibert
When you're being sued for debt, one of your first questions should be whether or not the court has "jurisdiction" (the right and power to decide the case against you). There are two kinds of jurisdiction you should consider: "personal" jurisdiction and "subject matter" jurisdiction. Although the two aren't always so neatly differentiated, the type of jurisdiction you're considering can make a lot of difference.

Personal Jurisdiction

Personal jurisdiction (in legalese this is often called " in personam jurisdiction") is the court's right to consider cases involving you personally. In general, in order for a court to have personal jurisdiction, you must have received adequate notice of the suit and must have sufficient links to the jurisdiction.

Adequate Notice

In consumer cases, "adequate notice" almost always means "service" of the summons upon you personally. That means a process server, often a deputy with the local government, but maybe just as often a private individual (normally cannot be a party to the suit or their lawyer), must hand you, or offer to hand you, the summons. If the process server does hand you or offer the summons, you have been served, and you normally have adequate notice at that point. A process server can also leave the summons with an adult member of your household at your residence.

Sufficient Connection to the Jurisdiction

For a court to assert jurisdiction over you, you must also have an adequate connection to the jurisdiction for it to be "fair" to haul you into court there. In many cases involving contracts, the contract will specify (as is allowed) that a certain court will have jurisdiction. In cases involving debt collectors, however, the Fair Debt Collection Practices Act (FDCPA) specifies that if you are a consumer, you can be sued on a debt in only two places: where you actually signed the contract; or where you currently reside . Or, if it involves real property, only in the jurisdiction of the property. 16 U.S.C. Section 1692i(a).

Because the FDCPA is a statute (written law), whereas the requirements of personal jurisdiction are constitutional, it is conceivable (but unlikely) that it could be unfair to bring suit where you signed the contract.

Subject Matter Jurisdiction

Subject matter jurisdiction involves the power of the court to hear cases like yours. Federal cases, for example, must have some federal basis for jurisdiction. In cases involving debt, this is quite unlikely, so you will not likely be sued in federal court. The FDCPA, on the other hand, does provide for federal jurisdiction, so you could bring a suit in any federal or state court on a claim under that Act.

A Gray Area

Sometimes personal jurisdiction can be the same as subject matter jurisdiction. For example, as I noted above, the FDCPA requires that claims against consumers by debt collectors be brought in specified jurisdictions. That's personal to you, of course, but does it also deprive the court of subject matter jurisdiction? It might, but you'd be better off considering it personal for purposes of contesting it.

Contesting or Disputing Jurisdiction

The main rule to keep in mind is that if you answer the petition without contesting jurisdiction from the very beginning, you will have "waived" your objections to personal jurisdiction . You must assert your defense to personal jurisdiction either separately in a "limited entry of appearance" for the purpose of hearing your motion to dismiss (some jurisdictions have eliminated the "limited entry" and just allow you to file a motion to dismiss). Or you can simply not respond to the suit and attack a judgment if it is entered against you in a court that does have jurisdiction. I see this as risky, but it might be necessary if you are being sued in a distant jurisdiction.

Notice that I said you could waive your objection to personal jurisdiction. That's because it applies to you. Subject matter jurisdiction, on the other hand, cannot be waived, and you can attack that at any time.

A Hint

The Rules of Civil Procedure for your jurisdiction will specify what other kinds of motions can be filed and need to be filed before answering the petition. A good place to start is by looking under "motions to dismiss" in your Rules.

If you are being harassed or sued for debt, you can get a lot of help, much of it free, from my website at: http://yourlegallegup.com .

Or please take a look at a brief video presentation: http://www.youtube.com/watch?v=WcxsiR5vedU .

Kenneth H. Gibert.

I Received a J.D. from Washington University Law School in 1989 and practiced law in St. Louis city and county (federal, state and local courts) for almost fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors. Sign up for a free report and more help for people struggling with debt.

Article Source: http://EzineArticles.com/?expert=Kenneth_Gibert

FACILITIES MANAGEMENT RESOURCES
BEST PRACTICES

Disposal/Reuse
Integrated Early Transfer Disposal
Department of the Army, 2002
The process to determine if a site’s
groundwater may naturally be of poor
quality is remarkably simple. It appears
difficult because the procedures are
scattered throughout the regulations
and are often misinterpreted. All that is
required is to determine if groundwater
from a background location contains
“naturally occurring contaminants” in
excess of their respective GCTL. It is
not necessary to reclassifr the aquifer.
The applicable regulations are found
in Chapter 62-780.200(5) F.A.C.,
Chapter 62-780.200(35) F.A.C. and
Chapter 62-780.680(2) (c) (1) F.A.C.

Currently, a GCTL of 0.3 mg/L is
being used to determine if groundwater
must be remediated through actions
like pump and treat. This GCTL is not
health based and ignores the possibility
that the groundwater at the site is
unacceptable for consumption because
of the presence of “naturally occurring
contaminants.”

Iron is an essential nutrient for humans
as it is a constituent of hemoglobin, and
a number of enzymes. The adequate
intake of iron for infants from birth to
6 months is estimated to be 0.27
milligram per day (mg/day). This
value was based upon the average
iron concentration in human milk of
0.35 mg/LA The iron recommended
daily allowance (RDA) ranges from
a low of 7 mg/day for children age
1 through 3 years to a high of 27
mg/day for pregnant w5omen. The
RDA range is the reason that overthe-
counter multimineral supplements
(e.g., Advanced Formula Centrum®)
show that each tablet has 18 mg of iron
and note that this value represents 100
percent of the “Daily Value.” The iron
concentration in the empty human adult
stomach after taking one multimineral
tablet with one 8-ounce glass of water is
therefore 75 mgIL. This concentration
is 250 times the GCTL in Chapter
62-777 F.A.C. of 0.3 mg/L.
Clearly the iron GCTL of 0.3 mg/L is
not health based and does not consider
the fact that this compound is an
essential nutrient. A more appropriate
approach, for essential nutrients, is
to develop GCTLs that take into
consideration the “risk of inadequacy”
and the “risk of adverse effects.”
Unfortunately, the equations used
in Chapter 62-777 F.A.C. are not
appropriate if the compound is an
essential nutrient; therefore, an alternate
approach is needed.
There is a problem when a GCTL must
be developed for an essential nutrient
like iron. Simply put, the conventional
approach used to develop the GCTL
does not consider the adverse health
effects of being exposed to too small an
amount of an essential nutrient. The
conventional equations used to generate
GCTLs do address the “risk of adverse
effects,” but do not address what is
known as the “risk of inadequacy.”
This matter is a current concern to the
U.S. Environmental Protection Agency
(EPA) and new guidance was released
last y6ear.

Exhibit 2-4
Summary of Region IV LUCAP
Requirements
1. A LUC implementation plan, the objectives for
the area, and the particular controls or
mechanisms to be implemented.
2. The program and point-of-contact responsible for
monitoring, maintenance, and enforcement.
3. A commitment by the facility to request funds for
maintaining LUCs.
4. Quarterly onsite monitoring unless another
monitoring frequency is approved.
5. Notification when a major change in land use is
anticipated.
6. Annual field inspections.
7. Certification of continued compliance in an
annual report.
8. Notification upon discovery of unauthorized
“major change in land use.”

Exhibit 2-6
Summary of Region X
Facility-Wide IC Requirements
A. Develop a comprehensive facility-wide approach
for establishing, implementing, enforcing, and
monitoring ICs at the facility. This approach will
frequently include a Base Master Plan or a facilitywide
land use plan, installation maps, a
comprehensive permitting system, and other
installation policies and orders.
B. Submit to EPA and the state a monitoring report
on the status of the ICs within six months of
signature on the decision document with an
updated monitoring report submitted annually
thereafter.
C. Notify EPA and the state immediately upon
discovery of any activity that is inconsistent with
the operable unit-specific institutional control
objectives for the site, or of any change in the
land use or land use designation of a site
addressed under item (A).
D. Identify a point of contact for implementing,
maintaining, and monitoring institutional controls.
E. Request and obtain funding to institute and
maintain institutional controls. (This requirement
can be dropped if the facility can demonstrate a
duplicate or similar requirement in a Federal
Facility Agreement or similar document.)
F. Notify EPA and the state at least six months prior
to any transfer, sale, or lease of any property
subject to institutional controls required by an
EPA decision document.
G. Restrict the deletion or termination of any
institutional control unless EPA and the state
have concurred in the deletion or termination.

EPA’s Federal Facilities Restoration and Reuse Office

EPA has statutory obligations related to the cleanup and property transfer of installations on the NPL
–CERCLA Section 120

•Privatization is expected to be used more frequently for environmental cleanup
–DoD believes privatization is a better way of doing business(e.g., NTC Orlando = Baldwin Park, a 2006 Phoenix Award winner)
–To date, early transfer with privatization has onlybeen done at non-NPL facilities
–NPL sites differ significantly from non-NPL sites because:
•EPA must approve the early transfer
•NPL sites generally will have a Federal Facility Agreement (FFA)in place
•Certain provisions of CERCLA specifically apply to NPL sites, such as EPA and DoD joint selection of cleanup remedy
•NPL sites may have greater contamination

Exhibit 2-7
Relevant DOE Orders
DOE Order # Title Objective
5400.1 General Env. Protection Prog. To establish environmental protection program
requirements, authorities, and responsibilities for DOE
operations for assuring compliance with applicable
federal, state, and local environmental protection laws
and regulations, executive orders, and internal
Department policies.
5400.5 Rad. Protect. of the Public & Env. To operate DOE facilities and conduct its activities so
that radiation exposures to members of the public are
maintained within the limits established in this Order and
to control radioactive contamination through the
management of real and personal property. It is also a
DOE objective that potential exposures to members of
the public be as far below the limits as is reasonably
achievable (ALARA) and that DOE facilities have the
capabilities, consistent with the types of operations
conducted, to monitor routine and non-routine releases
and to assess doses to members of the public.
4300.1C Real Property Management To establish Department-wide policies and procedures for the
acquisition, use inventory, and disposal of real property or
interests therein.
435.1 Radioactive Waste Mgmt. To establish policies, guidelines, and minimum
requirements by which DOE manages its radioactive and
mixed waste, and contaminated facilities. This Order
replaced Order 5820.2A.
430.1A Life Cycle Asset Management To plan, acquire, operate, maintain, and dispose of
physical assets as valuable national resources.
Stewardship of these assets shall be accomplished in a
safe and cost-effective manner to meet the DOE mission,
and to ensure protection of workers, the public, and the
environment.
4320.1B Site Development Planning Identifies the analyses that must be conducted in order for DOE
property to be considered excess and available for transfer to

State Regulations
Many state agencies have policies or regulations on the use of institutional controls in remedies
conducted in their state. At the time that this document was developed, 42 states referenced the
use of institutional controls in the state’s environmental regulations.14 These regulations may be more
restrictive or specific than the federal regulations that apply at the facility. Before selecting any remedy
that will include the use of institutional controls, facility personnel should consult and coordinate with
state environmental regulators, local redevelopment authorities, and state real estate attorneys to
determine the state’s position on the use of institutional controls. For example, Tennessee has
developed a policy on the use of “perpetual institutional controls.”15 This policy outlines the state’s
requirements for RODs that will rely on perpetual institutional controls. This policy originally applied to
the remediation of a uranium burial ground at the Oak Ridge Reservation, but was made applicable to
all onsite areas through a state policy on “Natural Attenuation and ARAR Waivers for Oak Ridge

14 Based on a search of the ENFLEX database of state and federal regulations; February, 1999. The list of
42 states includes : Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska,
Nevada, New York, New Jersey, New Mexico, North Dakota, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia,
and Wyoming.
15 State of Tennessee, Guidance Policy on Perpetual Institutional Controls, September 1, 1997.

Ninth Circuit Defines “Current Ownership” for Purposes of CERCLA Liability
Posted by Michael Einhorn, Esq. in CERCLA , Environmental Legislation and Regulation on August 5, 2010
In Dept. of Toxic Substances Control v. Hearthside Residential Corp. , No. 09-55389 (9 th Cir. July 22, 2010), the Ninth Circuit has clarified the issue of whether “owner and operator” status under CERCLA is defined at the time cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed, a question of first impression. The Ninth Circuit held that current ownership is measured at the time of cleanup, and therefore “the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability.”

The litigation relates to undeveloped wetlands known as the Fieldstone Property, and certain adjacent residential parcels (“Residential Site”). The defendant, Hearthside Residential Corporation (“Hearthside”), purchased the Fieldstone Property in 1999 knowing that the property was contaminated with polychlorinated biphenyls (“PCBs”). In 2002, Hearthside entered into a consent order with the State of California, Department of Toxic Substances Control (“DTSC”), in which Hearthside agreed to remediate the PCB contamination on the Fieldstone Property. DTSC further alleged that the PCBs from the Fieldstone Property had migrated onto the adjacent Residential Site. Hearthside disputed DTSC's allegation, and remediated only the Fieldstone Property. DTSC certified Hearthside's completion of the Fieldstone Property on December 1, 2005, and Hearthside sold that property later that month. Meanwhile, DTSC contracted to remediate the Residential Site and incurred cleanup expenses between July 2002 and October 2003, while Hearthside still owned the Fieldstone property. In October, 2006, DTSC filed a complaint against Hearthside seeking reimbursement for the Residential Site cleanup, among other relief. Thus, Hearthside owned the Fieldstone Property at the time of DTSC's cleanup, but not when DTSC filed its complaint.

DTSC's complaint was based, in relevant part, on (1) DTSC's allegation that the Fieldstone Property was the source of the contamination on the Residential Site, and (2) the fact that Hearthside owned the Fieldstone Property at the time the Residential Site was cleaned. CERCLA imposes strict liability for environmental contamination upon four classes of potentially responsible parties, one of which is the “owner and operator of a vessel or a facility.” 42 U.S.C. § 9607(a)(1). Other courts have defined this category of responsible parties to refer to “current” owners or operators. Hearthside , citing Carson Harbor Vill., Ltd. v. Unocal Corp ., 270 F.3d 863, 881 (9th Cir. 2001) (en banc); accord , e.g. , United States v. Capital Tax Corp. , 545 F.3d 525, 530 (7th Cir. 2008); ITT Indus., Inc. v. BorgWarner, Inc. , 506 F.3d 452, 456 (6th Cir. 2007). However, CERCLA does not define the date from which to measure ownership. The district court granted partial summary judgment in favor of DTSC, finding that “owner” status is determined at the time a response-recovery claim accrues (when the cleanup occurs), not at the time the lawsuit is initiated. The parties jointly requested immediate certification of the issue for appeal, which the trial court granted. The 9 th Circuit accepted the appeal of this question of law.

The 9 th Circuit noted that CERCLA is silent on the issue of the date from which ownership is measured, and therefore looked to the statutory context and CERCLA's purposes to deduce Congress's intent. Regarding Congress's intent, the court reasoned that because the applicable statute of limitations is triggered at the time of cleanup, this suggests Congress's intent was to make the owner at the time of cleanup the “current owner.”

Regarding CERCLA's purposes, the Court reasoned that CERCLA encourages early settlements rather than litigation. However, by attaching “current owner” status to a potentially responsible party only at the time of the filing of a lawsuit could cause many premature suits to be filed, contrary to CERCLA's the goal of encouraging early settlements. In addition, settlement requires the responsible party's agreement to remediate the property; the owner at the time of cleanup can select from alternative remedial plans, and therefore that owner should be responsible for the cost of the cleanup. The Court also reasoned that CERCLA discourages delay of remediation, and attaching “current owner” status at the time of remediation would not encourage delay, stating:

“[A] landowner that knows it will ultimately be responsible for the cleanup costs has no incentive to delay the completion of that process once it has begun. Conversely, . . . a landowner seeking to avoid liability by transferring the property before a lawsuit is filed has every incentive to delay completing the cleanup process until it has found a buyer; the recovery suit is likely to be filed once cleanup is complete and the total cost is known.”

The decision does not address the second category of “owner” liability under CERCLA, namely “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of…” 42 U.S.C. § 9607(a)(2). Any former property owner evaluating its potential liability under CERCLA must consider the possible applicability of both categories of “owner” liability, along with the timing of any remedial actions taken on that property or adjoining properties pursuant to this decision.

•EPA Administrator (and Governor of the State) required to approve the covenant deferral request for all NPL early transfers
–Service may retain cleanup responsibility
–Transferee may take cleanup responsibility
•Use of Public Sale in disposing of contaminated property
–Has never been done at a NPL facility
–Regulators role where multiple bidders agree to take on cleanup responsibility?

•It’s not easy!
•Negotiating the cost of remaining work to be done can be time consuming for DoD and transferee; negotiations may be time consuming for state and EPA also
•Changes in reuse plans can disrupt the path forward
•All parties involved will need to give and take to make the deal work
•Privatized cleanups need to recognize the need for community involvement
–CERCLA Section 117 requirements will still apply

EXPLANATION OF SIGNIFICANT DIFFERENCE - CERCLA 117(c)

SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
For purposes of taking action under section 104 or 106 and listing facilities on the National Priorities List, the President shall give a high priority to facilities where the release of hazardous substances or pollutants or contaminants has resulted in the closing of drinking water wells or has contaminated a principal drinking water supply. [42 U.S.C. 9618]

E-Update on Land Management - Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land Congressman Herger

During the “lame duck” session of the 111 th Congress, Democratic members of the U.S. Senate had their sights set on passing yet another omnibus public lands bill to designate thousands of acres of wilderness and enact other restrictions on federal land-use. Thankfully, this effort was met with strong resistance by Senate conservatives and was quickly dropped before Congress adjourned on December 22 nd . However, in what appears to be a consolation prize to the environmental activist community and its supporters, upon Congress' adjournment Department of the Interior Secretary Salazar released Secretarial Order #3310 , which instructs the federal Bureau of Land Management (BLM) to identify and designate BLM lands with wilderness characteristics as “Wild Lands.”

By designating “Wild Lands” through land-use planning, this order represents a deliberate end-run around the authority of Congress to designate lands as wilderness. While I have long opposed wilderness designations under any circumstances due to their extreme restrictions on beneficial and economic use of our federal lands, as well as the management restrictions that inhibit local efforts to address the growing threat of wildfires, I also believe that those decisions are best made through open debate and a vote by the Congress instead of through a backdoor process that is solely at the discretion of a federal agency. Moreover, as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands. As the 112 th Congress convenes with an emboldened conservative majority, I will pursue whatever means possible to prevent this Secretarial Order or any other policy from further restricting recreation, forest management, mining, grazing, and other valuable uses of our public lands in Northern California.

H.R.1885
Latest Title: Private Property Rights Protection Act of 2009
Sponsor: Rep Waters, Maxine [CA-35] (introduced 4/2/2009)       Cosponsors (26)
Latest Major Action: 5/26/2009 Referred to House subcommittee. Status: Referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

All Information (except text) Text of Legislation CRS Summary Major Congressional Actions

All Congressional Actions

All Congressional Actions with Amendments
With links to Congressional Record pages, votes,reports

Titles Cosponsors (26) Committees

Related Bills Amendments Related Committee Documents

CBO Cost Estimates Subjects

IN THE HOUSE OF REPRESENTATIVES

September 17, 2009

Mr. BROUN of Georgia (for himself, Mr. BARTLETT, Mr. BISHOP of Utah, Mr. SCALISE, Mr. SMITH of Texas, Mrs. BACHMANN, Mr. MARCHANT, Mr. GINGREY of Georgia, Mr. MANZULLO, Mr. SHADEGG, Mr. GOHMERT, Mr. CULBERSON, Mr. HERGER, Mr. MILLER of Florida, Mr. KINGSTON, Mr. WESTMORELAND, Mr. DEAL of Georgia, Mr. HALL of Texas, Mr. KING of Iowa, Mr. AKIN, Mr. GARRETT of New Jersey, Mr. BROWN of South Carolina, Mr. FRANKS of Arizona, Mr. PENCE, Mr. HENSARLING, Mr. FORBES, Mr. BOOZMAN, Mr. HARPER, Mr. ROE of Tennessee, Mr. LINDER, Mr. RYAN of Wisconsin, Mr. HELLER, Mr. WILSON of South Carolina, Mr. KLINE of Minnesota, Mr. CONAWAY, Mr. BURTON of Indiana, and Mr. PRICE of Georgia) submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

Recognizing the importance of the property rights granted by the United States Constitution; affirming the duty of each Member of this body to support and defend such rights; and asserting that no public body should unlawfully obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.

Whereas there is no greater expression of freedom and liberty than the defense of the God-given right of an individual to hold, possess, and use private property;

Whereas John Locke, the great political philosopher lauded by so many of the Founders of this Nation, stated, `the preservation of property [is the reason] for which men enter into society' and that `no [government] hath a right to take their [property], or any part of it, without their own consent, for this would be in effect to leave them no property at all.';

Whereas William Blackstone, whose lectures shaped and helped inspire the Declaration of Independence, Constitution, and primal laws of America, wrote: `So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.';

Whereas Samuel Adams, the political writer, statesman, and signer of the Declaration of Independence, declared that our rights included: `First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them.';

Whereas John Adams, diplomat, signer of the Declaration of Independence, and President of the United States, firmly proclaimed: `The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' and that `Property is surely a right of mankind as real as liberty.';

Whereas John Adams also affirmed: `Property must be secured or liberty cannot exist.';

Whereas James Madison, author of the Constitution, and President of the United States, announced: `Government is instituted to protect property. . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.';

Whereas John Dickinson, signer of the Constitution, stated: `Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free, without being secure in our property; (3) that we cannot be secure in our property, if, without our consent, others may, as by right, take it away.';

Whereas Thomas Jefferson, the mind behind the Declaration of Independence, and President of the United States, wrote: `The true foundation of republican government is the equal right of every citizen in his person and property and in their management.' and `The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits.';

Whereas Thomas Jefferson also affirmed: `Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken.';

Whereas Noah Webster, the `Father of American Scholarship and Education', stated: `It is admitted that all men have an equal right to the enjoyment of their life, property and personal security; and it is the duty as it is the object, of government to protect every man in this enjoyment.';

Whereas John Jay opined: `No power on earth has a right to take our property from us without our consent.'; and

Whereas Fisher Ames, framer of the Bill of Rights and Massachusetts Representative to the first four Congresses, said: `The chief duty and care of all governments is to protect the rights of property.': Now, therefore, be it

Resolved, That--

(1) these ideals did motivate and continue to justify the drafting of article 1, section 8 of the United States Constitution, which states that it is the responsibility of Congress `to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries', and the writing of the 5th amendment to our Constitution, which clearly states: `No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.';

(2) since every Member of this body has sworn or affirmed to both support and defend the entire Constitution and `to bear true faith and allegiance to the same', any act not in accordance with that oath is both a betrayal of the United States Constitution and a violation of Federal law; and

(3) in the constant pursuit of a more perfect union, all citizens of the United States should remain secure in the possession of private property, and no court, legislature, or executive shall, by predatory law or tyrannical force, obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.

The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or community. 1 The words ‘‘or the Indian tribe’’ were inserted after the words ‘‘State Government’’ in the previous version of this sentence, but the same law also removed the sentence containing those words and replaced it with this new sentence which does not contain the words ‘‘State Government’’. See sections 107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and Reauthorization Act of 1986.

in accordance with section 553 of title 5, United States Code, the President shall by rule promulgate amendments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review.

$1 Billion Settlement Reached at Iron Mountain Mine Site

When EPA, in conjunction with the State, has determined that all appropriate response actions have been implemented and no further remedial measures are necessary, a Notice of Final Action to Delete is published in the Federal Register. If EPA receives no significant adverse or critical comments from the public within the 30- day comment period, the site is deleted from the NPL. Reform of the program is ongoing. The reforms are being refined and improved – and their impact is becoming broader. EPA is
consistently addressing stakeholders’ criticisms and developing new ways to make Superfund work faster, fairer, and more efficiently. EPA believes that communities must have meaningful opportunities for involvement early in the cleanup process and should stay involved throughout site cleanup. Some of the ways that this is done is through Community Advisory Groups (CAGs) and Technical Assistance Grants (TAGs).
A CAG is a committee of citizens affected by a hazardous waste site. CAGs are made up of representatives with diverse community interests and provide a public forum for community members to present and discuss their needs and concerns regarding decision-making at a site. Many Superfund sites present communities with complex issues
often requiring expertise in chemistry, engineering, geology, toxicology, and law. A TAG is a grant of up to $50,000 for community groups to hire the technical advisers needed to help.

Developing Partnerships
To achieve success and promote public participation, EPA works with communities, local businesses, large corporations, and State, local, and Tribal governments in the form of partnerships. EPA, through its State and Tribal Enhanced Role Initiative, developed a comprehensive plan to implement equitable sharing of Superfund program responsibilities with interested and capable States and Tribes, resulting in quicker cleanup of more sites. In Mississippi, EPA has entered into a pilot program partnering with a band of Choctaw Native Americans. The pilot supports Tribal efforts in building a greater Superfund capacity with respect to emergency preparedness and response. Through the pilot, the Tribe will learn how to effectively respond to oil and hazardous substance spills and perform environmental assessments at potential waste sites on Tribal lands.

Implementing Technological Innovations
SARA established a preference for treatment of hazardous wastes and created a demand for alternatives to land disposal.
New innovative treatment technologies grew from this demand to provide more permanent, less costly solutions, for dealing with contaminated materials.
The Superfund Innovative Technology Evaluation (SITE) Program was established to meet this increased demand for alternative technologies.
The SITE Program has provided demonstrations of new technologies at particular sites, resulting in average cost savings of over 70 percent per site. The total cost savings for innovative treatment as opposed to conventional treatment is estimated at $2.1 billion.

EPA also promotes the research and development of innovative technologies by sharing the risk with PRPs who select remedies employing low-cost, high performance technologies. EPA will “underwrite” these innovative approaches by agreeing to reimburse up to 50 percent of the cost if the innovative remedy fails and a subsequent remedy is required.

EPA has taken significant steps to reduce litigation, promote earlier settlements, and optimize fairness concerns. By streamlining the enforcement process, EPA is able to reach settlement more quickly on terms that are considered more fair to the responsible parties. This streamlined process allows both EPA and the PRPs to move quickly to clean up sites, and to increase the pace at which contaminated properties are returned to productive use. Since 1992, responsible parties have performed over 70 percent of the new cleanup work at Superfund sites. And over the life of the Superfund program, EPA has reached settlements with private parties valued at over $18 billion.

Removing Legal Barriers and Encouraging Economic Redevelopment

‘‘Audit Policy.’’ The purpose of this Policy is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, promptly disclose and expeditiously correct violations of Federal environmental requirements. The revised Policy was developed in close consultation with the U.S. Department of Justice (DOJ), States, public interest groups and the regulated community.

The Policy includes important safeguards to deter violations and protect public health and the environment. For example, the Policy requires entities to act to prevent recurrence of violations and to remedy any environmental harm that may have occurred. Repeat violations, those that result in actual harm to the environment, and those that may present an imminent and substantial endangerment are not eligible for relief under this Policy. Companies will not be allowed to gain an economic advantage over their competitors by delaying their investment in compliance. And entities remain criminally liable for violations that result from conscious disregard of or willful blindness to their obligations under the law, and individuals remain liable for their criminal misconduct.
When EPA issued the 1995 Audit Policy, the Agency committed to evaluate the Policy after three years. The Agency initiated this evaluation in the Spring of 1998 and published its preliminary results in the Federal Register on May 17, 1999 (64 FR 26745). The evaluation consisted of the following components:
1 An internal survey of EPA staff who process disclosures and handle enforcement cases under the 1995 Audit Policy;
2 A survey of regulated entities that used the 1995 Policy to disclose violations;
3 A series of meetings and conference calls with representatives from industry, environmental organizations, and States;
4 Focused stakeholder discussions on the Audit Policy at two public conferences co-sponsored by EPA’s Office of Enforcement and Compliance Assurance (OECA) and the Vice President’s National Partnership for Reinventing Government, entitled ‘‘Protecting Public Health and the Environment through Innovative Approaches to Compliance’’;

40658 - 40673 Federal Register / Vol. 48, No. 175 / Thursday, September 8, 1983 / Rules and Regulations List of Subjects in 40 CFR Part 300

Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Super fund, Waste treatment and disposal, Water pollution control, Water supply.

PART 300 - [AMENDED] Part 300, Title 40 of the Code of Federal Regulations is hereby amended by adding a new Appendix B, to read as follows:

BILLING CODE 6560-50-M

Appendix B - National Priorities List, Group 2 09 CA Iron Mountain Mine Redding R = FEDERAL AND STATE RESPONSE; Last updated on October 01, 2010

Voluntary or Negotiated Response

Sites are included in this category if private parties are taking response actions pursuant to a consent order or agreement to which EPA is a party. Voluntary or negotiated cleanup may include actions taken pursuant to consent orders reached after EPA has commenced an enforcement action. This category of response may include remedial investigations, feasibility studies, and other preliminary work, as well as actual cleanup.

Several commenters were concerned that this category did not adequately reflect voluntary response efforts undertaken without formal agreements with EPA. However, EPA studies have shown that many of the response actions undertaken by private parties outside the sanction of EPA consent agreements have not been successful. Furthermore, some private parties have represented routine maintenance or waste management activities as response actions, thereby leading to the conclusion that only after a thorough technical review can the Agency describe actions by private parties as "responses". Thus, EPA believes that to describe actions taken outside consent orders as "response" would in many instances be misleading to the public as EPA cannot assure the public that the actions are appropriate, adequate, consistent with the NCP, and are being fully implemented. Therefore, the Agency encourages any responsible parties who are undertaking voluntary response actions at NPL sites to contact the Agency to negotiate consent agreements.

This is not intended to preclude responsible parties from taking voluntary response actions outside of a consent agreement. However, in order for the site to be deleted or to be noted in the voluntary or negotiated response category, EPA must still sanction the completed cleanup. If the remedial action is not fully implemented or is not consistent with the NCP, the responsible party may be subject to an enforcement action. Therefore, most responsible parties may find it in their best interest to negotiate a consent agreement.

Federal and State Response

The Federal and State Response category includes sites at which EPA or State agencies have commenced or completed removal or remedial actions under CERCLA, including, remedial investigations and feasibility studies (see NCP, § 300.68 (f)-(i), 47 FR 31217, July 16, 1982). For purposes of this categorization, EPA considers the response action to have commenced when EPA has obligated funds. For some of the sites in this category EPA may follow remedial investigations and feasibility studies with enforcement actions, at which time the site status would change to "Federal or State Enforcement."

Federal or State Enforcement

This category includes sites where the United States or the State has filed a civil complaint or issued an administrative order. It also includes sites at which a Federal or State court has mandated some form of non-consensual response action following a judicial proceeding. It may not, however, include all sites at which preliminary enforcement activities are underway. A number of sites on the NPL are the subject of enforcement investigation or have been formally referred to the Department of Justice for enforcement action. EPA's policy is not to release information concerning a possible enforcement action until a lawsuit has been filed. Accordingly, these sites have not been included in the enforcement category. [FR Doc. 83-24538 Filed 9-7-83; 8:45 am]

Federal Environmental Executive to Speak

Meeting attendees will also hear Joe Cascio, U.S. Federal Environmental Executive, illustrate the dramatic impact of the federal government's consumption of goods and services and how that purchasing power can be harnessed to create positive environmental change. For example, the government:

is the country's largest buyer/user of energy ($3.5 billion/year)

accounts for 7% of the world's information technology purchases

controls a real estate portfolio of more than 1.2 million assets, including more than 550,000 buildings

“Champions of Environmental Leadership and Green Government”

Participating Federal Green Challenge agencies, entities and facilities include: the U.S. Environmental Protection Agency; General Services Administration, U.S Army Corps. of Engineers; the National Park Service; Bureau of Land Management; the U.S. Department of Housing and Urban Development, the Federal Aviation Administration; Social Security Administration; National Oceanic and Atmospheric Administration, U.S. Coast Guard; U.S. Fish & Wildlife Service; U.S. Department of Agriculture (Forest Service, National Resource Conservation Service, Rural Development); U.S. Department of Transportation (Federal Transit Administration) and the U.S. Geological Survey, the Bonneville Power Administration and the U.S. Army (Fort Lewis, WA).

Institutional Controls and Transfer of Real Property under CERCLA Section 120(h)(3)(A), (B) or (C)

PDF Version (9 pp, 64K, About PDF )

On this page

Summary

1.0 Background of the Guidance

2.0 Purpose and Scope of the Guidance

3.0 Applicability of the Guidance

4.0 General Guidelines for Institutional Controls

5.0 Specific Guidelines for Institutional Controls

6.0 Documentation of Institutional Controls

7.0 "Operating Properly and Successfully Demonstrations"

8.0 Coordination with State, Local, and Tribal Governments

9.0 Executive Order 13132, "Federalism"

10.0 Conclusion

Summary

This document provides guidance to the U.S. Environmental Protection Agency (EPA) on the exercise of EPA's discretion under CERCLA section 120(h)(3)(A),(B), or (C) when EPA is called upon to evaluate institutional controls as part of a remedial action. also informs the public and the regulated community on how EPA intends to exercise its discretion in this context. designed to implement the President's policy of promoting, encouraging, and facilitating the redevelopment and reuse of closing military bases while continuing to protect human health and the environment. ay change this guidance in the future, as appropriate.

EPA's evaluation of federal property transfers is contingent on the receipt of information establishing that the institutional controls will be effective in preventing human or environmental exposure to hazardous substances that remain on site above levels which allow unrestricted use. guidance requires that the transferring federal agency demonstrate prior to transfer that certain procedures are in place, or will be put in place, that will provide EPA with sufficient basis for determining that the institutional controls will perform as expected in the future. Such procedures, which are listed in Section 5.0 below, include the means for:

Monitoring the institutional controls' effectiveness and integrity.

Reporting the results of such monitoring, including notice of any violation or failure of the controls.

Enforcing the institutional controls should such a violation or failure occur.

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1.0 Background of the Guidance

What are institutional controls?

Institutional controls are nonengineering measures designed to prevent or limit exposure to hazardous substances left in place at a site, or assure effectiveness of the chosen remedy. Institutional controls are usually, but not always, legal controls, such as easements, restrictive covenants, and zoning ordinances.

What is the historical basis for this guidance?

The Department of Defense's (DoD) base closure program and the Department of Energy's reuse and reindustrialization of surplus facilities are just two examples of programs where federal properties with hazardous substances remaining on site are being transferred outside of federal control. These property transfers will often require the implementation of institutional controls to ensure that human health and the environment are protected. Such property transfers highlight the need to ensure that institutional controls are clearly defined, oversight and monitoring roles are understood, and appropriate enforcement mechanisms are in place to ensure that human health and the environment are protected.

What is the statutory basis for this guidance?

Section 120(h)(3)(A) of CERCLA requires that a federal agency transferring real property (hereafter, transferring federal agency - by "transferring federal agency" EPA means the federal agency responsible for cleanup) to a nonfederal entity include a covenant in the deed of transfer warranting that all remedial action necessary to protect human health and the environment has been taken prior to the date of transfer with respect to any hazardous substances remaining on the property. In addition, CERCLA section 120(h)(3)(B) requires, under certain circumstances, that a federal agency demonstrate to the EPA Administrator that a remedy is "operating properly and successfully" before the federal agency can provide the "all remedial action has been taken" covenant. Under CERCLA section 120(h)(3)(C), the covenant can be deferred so that property may be transferred before all necessary remedial actions have been taken if regulators agree that the property is suitable for the intended use and the intended use is consistent with protection of human health and the environment.

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2.0 Purpose and Scope of the Guidance

What is the purpose of this guidance?

This guidance establishes criteria for EPA to evaluate the effectiveness of institutional controls that are part of a remedy or are a sole remedy for property to be transferred subject to CERCLA section 120(h)(3)(A),(B), or (C). Accordingly, this institutional control guidance provides guidelines applicable to property transfers in general and, more specifically, to support "operating properly and successfully determinations" under CERCLA section 120(h)(3)(B).

This guidance does not substitute for EPA regulations, nor is it a regulation itself. Thus, it cannot impose legally binding requirements on EPA, states, or the regulated community, and may not apply to a particular situation based upon the circumstances.

What does the guidance not address?

This guidance does not address the issue of whether an institutional control is appropriate for a particular site. That decision is made as part of the remedy selection process. If, however, it becomes clear that the criteria set forth in this guidance cannot be met, the scope, effectiveness, or even the use of an institutional control should be reconsidered. This guidance does not change EPA's preference for active and permanent remedies as stated in CERCLA section 121 (See also 55 FR, page 8706 [March 8, 1990]), or any of the requirements for selecting remedies in CERCLA or the NCP (See CERCLA section 121 and 40 CFR 300.430).

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3.0 Applicability of the Guidance

Under what circumstances does the guidance apply?

The guidance applies in the following situations:

When EPA approves "operating properly and successfully demonstrations" for ongoing remedies under CERCLA section 120(h)(3)(B). (See Section 7.0 for more information.)

When EPA evaluates a federal agency's determination under 120(h)(3)(A) that all remedial actions have been taken, such as when commenting on a "finding of suitability of transfer," in the consultative process established by DoD.

When EPA approves a Covenant Deferral Request under 120 (h)(3)(C) for an early transfer (For more information, see EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3), June 16, 1998).

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4.0 General Guidelines for Institutional Controls

Who is responsible for implementing institutional controls?

The decision to clean up a site to less than unrestricted use or to otherwise restrict the use of the site must be balanced by the assurance that a system will be in place to monitor and enforce any required institutional controls. This assurance is necessary to ensure the long term effectiveness and permanence of the remedy (For more information, see 55 FR section 300.430 (e)(9) (iii)(C)(2)). In EPA's view, the transferring federal agency is responsible for ensuring that the institutional controls are implemented. Even if implementation of the institutional controls is delegated in the transfer documents, the ultimate responsibility for monitoring, maintaining, and enforcing the institutional controls remains with the federal agency responsible for cleanup.

The transferring agency should clearly identify and define the institutional controls and set forth their purpose and method of implementation in a Record of Decision (ROD) or other decision document. Generally referring to or identifying an institutional control in a ROD is only one step in achieving the objective of an institutional control. An institutional control must be implemented in much the same way as an engineered remedy described in a ROD is designed and constructed.

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5.0 Specific Guidelines for Institutional Controls

What information does EPA need?

EPA's review of federal property transfers requiring institutional controls should focus on whether the institutional controls, when in place, will be reliable and will remain in place after initiation of operation and maintenance. The information should document that the transferring federal agency will ensure that appropriate actions will be taken if a remedy is compromised. EPA should work with the transferring agency to obtain and evaluate the information described below as a precondition for EPA's support of federal property transfers under 120 (h)(3)(A),(B) or (C). At a minimum, EPA should expect to obtain the following information from the transferring federal agency:

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

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

Identification of the residual hazard or risk present on the parcel requiring the institutional control. In addition, the specific activities that are prohibited on the parcel should be identified, including prohibitions against certain land use activities that might affect the integrity of the remedy, such as well drilling and construction.

The specific institutional control language in substantially the same form as it will appear in the transfer document and a description of the legal authority for the implementation of these controls, such as state statutes, regulations, ordinances or other legal authority including case law.

A statement from the transferring federal agency that, in their best professional judgement, the institutional controls conform or will conform with the legal requirements of the applicable state and/or local jurisdiction. This statement should also explain how the institutional controls will be enforceable against future transferees and successors. Compliance with the institutional control should be enforceable against whoever might have ownership or control of the property. For Base Realignment and Closure properties, the majority of the transfers which EPA reviews, this statement could be included in a memorandum transmitting the final institutional control language for the deed of transfer from a DoD component attorney to the Commanding Officer. The memorandum could state that, based upon a review of the particular state's real estate laws, the component attorney believes that the institutional control is binding in perpetuity and enforceable in state court, and if it is not, he/she will revisit the institutional control or the entire remedy decision. This memorandum could be included in DoD's "operating properly and successfully demonstration" letter to EPA (This is consistent with DoD's own requirement in their guidance Responsibility for Additional Environmental Cleanup after Transfer of Real Property, which states "The DoD component disposal agent will also ensure that appropriate institutional controls and other implementation and enforcement mechanisms, appropriate to the jurisdiction where the property is located, are either in place prior to the transfer or will be put in place by the transferee.").

A description of who will be responsible for monitoring the integrity and effectiveness of the institutional controls and the frequency of monitoring. If this is a party other than the transferring federal agency, the transferring federal agency should provide documentation that the party accepts or will accept the responsibility. The transferring agency should also describe which specific party or office will be responsible for overseeing the institutional controls. The transferring agency might, for example, provide details of the types of assistance that other government agencies will provide in preventing the drilling of drinking water wells as well as the frequency of monitoring to ensure that drilling is not occurring.

A description of the procedure that will be used to report violations or failures of the institutional controls to the appropriate EPA and/or state regulator, local or tribal government, and the designated party or entity responsible for reporting.

A description of the procedure that will be used to enforce against violations of an institutional control, an identification of the party or parties that will be responsible for such enforcement, and a description of the legal authority for this enforcement procedure, such as state statutes, regulations, ordinances, or other legal authority including case law.

Assurance that the transferring federal agency will verify maintenance of the institutional control on a periodic basis unless other arrangements have been made. In the latter case, where another party is performing the monitoring function, that party should provide such assurances. In addition, the transferring federal agency must commit to verify the reports on a regular basis in this case.

A description of the recording requirements in the jurisdiction where the site is located. The transferring agency also must describe the methods it will use to provide notice of the institutional controls at the site to subsequent owners or lessees.

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6.0 Documentation of Institutional Controls

What remedy selection documentation should EPA expect from the transferring federal agency?

EPA may base its evaluation of the institutional control on information found in the following remedy selection, remedy design, or other documents:

RODs that contain sufficient information regarding institutional controls.

Other post-ROD documents that are completed following the selection of a remedy, such as a Remedial Design, Remedial Action Plan, or Operation and Maintenance Plan. This applies in cases where the ROD requires the use of an institutional control but fails to provide sufficient information regarding purpose, implementation, or enforcement (such as in older RODs).

What if existing documents do not provide sufficient information on institutional controls?

If none of the documents mentioned above provide sufficient detail on the implementation of the institutional control, the transferring federal agency should develop an "Institutional Control Implementation Plan" (ICIP) to assist EPA in evaluating the effectiveness of the institutional control. The ICIP should adhere to the following conditions:

The ICIP should be a comprehensive strategy for the implementation of institutional controls.

The ICIP should identify the parties responsible for implementing and monitoring the institutional controls.

The ICIP should document that procedures adequate for effectively implementing and monitoring the institutional control are in place or will be put in place.

The level of detail in the ICIP should be commensurate with the risk at the site. Depending on the residual risk posed by the site, for instance, EPA may require that the plan be agreed upon by both EPA and state regulators and/or that the plan be structured as an agreement among all the parties involved via a Memorandum of Agreement, amendment of a ROD or Federal Facilities Agreement, or an operation and maintenance plan.

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7.0 "Operating Properly and Successfully Demonstrations"

How does this guidance apply to demonstrations that remedial actions are "operating properly and successfully"?

In August 1996, EPA issued guidance to EPA's Regional Federal Facility programs describing the approach EPA should use in evaluating a federal agency's demonstration that a remedial action is "operating properly and successfully" as a precondition to the deed transfer of federally-owned property, as required in CERCLA section 120(h)(3)(B). In that guidance, entitled Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully under CERCLA Section 120(h)(3), EPA directed Regional decision-makers to consider a number of factors in evaluating an "operating properly and successfully demonstration" of ongoing remedial actions, including institutional controls. With respect to institutional controls, EPA stated generally that:

"If the integrity of the remedial action depends on institutional controls (e.g., deed restrictions, well drilling prohibitions) these controls should be clearly identified and agreed upon."

Additionally, under the more specific criteria that must be demonstrated for groundwater remedies, the 1996 guidance included "appropriate institutional controls are in place" as a criterion, but did not describe how federal agencies should meet this requirement. For ongoing remedial actions involving institutional controls and for which EPA must evaluate a transferring federal agency's demonstration that a remedial action is operating properly and successfully, the information listed in Section 5.0 of this guidance should be submitted as part of the data requirements for the remedial action.

What documentation does EPA need to evaluate "operating properly and successfully demonstrations"?

The following documentation is needed for all "operating properly and successfully demonstrations":

The transferring federal agency should research, assemble, and analyze the information to demonstrate to EPA that the remedy is operating properly and successfully.

The cover letter forwarding the information to EPA should request EPA's approval of the demonstration and include a statement by a Commanding Officer or senior official similar to the following:

I certify that the information, data, and analysis provided are true and accurate based on a thorough review. To the best of my knowledge, the remedy is operating properly and successfully, in accordance with CERCLA 120(h)(3)(B).

Generally, where institutional controls are a component of a remedy, EPA should not consider "operating properly and successfully demonstrations" that are not consistent with the requirements described above in Sections 5.0 and 6.0 .

When should information for "operating properly and successfully" demonstrations be provided?

EPA should encourage federal agencies preparing "operating properly and successfully demonstrations" to work closely with EPA in planning the scope and presentation of the documentation. A minimum of 45 days is needed for EPA to review all "operating properly and successfully demonstrations."

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8.0 Coordination with State, Local, and Tribal Governments

What organizations should be involved in the development of institutional controls?

Successful management of institutional controls is critical to protecting the human health and environment of the communities where federal properties are located. For this reason, EPA encourages early communication and cooperation among federal, state, local, and tribal governments in the development of institutional controls and implementation plans. Where the viability of the institutional control is contingent on state property law or where state institutional control-related laws may apply (e.g., documentation of institutional controls in a state registry), it is particularly important to coordinate with the state. As a matter of policy, therefore, EPA will forward all institutional control information received for federal property transfers to the appropriate state, local, and tribal governments. EPA also will solicit comments from these organizations as appropriate.

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9.0 Executive Order 13132, "Federalism"

Does this Guidance have Federalism Implications?

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations and regulatory policies that have "substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This guidance does not have federalism implications. This guidance aids EPA in implementing its responsibilities under CERCLA section 120(h)(3)(A), (B) or (C). This guidance also encourages Federal agencies to coordinate the development and implementation of institutional controls with state, local and tribal governments. Neither such coordination, nor any other aspect of this guidance, however, will have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of the Executive Order do not apply to this guidance.

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10.0 Conclusion

How will EPA evaluate institutional controls?

EPA prefers to work with federal agencies early in the remedy selection process to assure full and consistent consideration of the long term effectiveness of the institutional controls. For this reason, it is imperative that these discussions begin prior to remedy selection. Although the federal government has had less experience designing and implementing institutional controls than engineered remedies, EPA will use its professional judgement in evaluating institutional control plans, as it does in evaluating other aspects of remedies and operations and maintenance. The basis for that judgment may vary depending on the site characteristics. EPA understands the importance of rapid reuse to the surrounding communities and is committed to supporting this effort while maintaining the Agency's primary goal of protecting human health and the environment.

EPA crackdown on mountaintop removal named among environmental issues to watch in 2011

THE WARNING

Freedom is not something that anybody can be given ; Freedom is something that people take and people are as free as they want to be. -James Baldwin

US CFTC needs "Plan B" for costly swaps rules-INTERVIEW-UPDATE 1

FINANCIAL-REGULATION/OMALIA (INTERVIEW)(UPDATE 1)

* CFTC needs plan in case it doesn't get new funding

* Reforms will cost more, take longer than imagined

* Could outsource some tasks to private regulators

* Should restructure to focus on data, add technology

* "Further negotiations" needed on position limits (Adds additional information and background starting in 16th paragraph)

By Roberta Rampton

WASHINGTON, Jan 3 (Reuters) - The U.S. futures regulator needs to consider a "Plan B" on how it will police the $600 trillion swaps market if Congress fails to deliver a 50 percent increase in its budget, one of its top officials said on Monday.

The Commodity Futures Trading Commission has been counting on getting a $92 million budget hike for 2011 -- and even more in 2012 -- to take on new responsibilities to oversee the over-the-counter market in the bank reform law, but may come up short as lawmakers look to slash government spending.

"We may not get more dollars, so what are we going to do next? What's our Plan B?" said Scott O'Malia, a Republican commissioner on the CFTC, in an interview with Reuters.

His comments were among the most frank acknowledgments from top CFTC officials that the agency faces an uphill battle implementing reforms without new funding.

O'Malia said he didn't have the answers, but said CFTC staff were beginning to think about options, including asking private industry regulators like the National Futures Association to shoulder more responsibilities.

It's an idea that has been raised by other CFTC commissioners as one way to help the chronically underfunded agency cope with the dramatic overhaul of its role under the Dodd-Frank financial law.

Republican lawmakers, who now control the House of Representatives and increased their numbers in the Senate, have said they want to review regulatory expansion plans and slow reforms passed by Democrats last year.

REFORMS "MORE EXPENSIVE THAN WE IMAGINE"

Agency staff have been working nights and weekends to meet the July deadlines to finalize CFTC rules that were set out in the Dodd-Frank law, O'Malia said.

"If Congress wants to change that (deadline), I'm sure everybody would breathe somewhat of a sigh of relief, and it certainly would allow us to take a little slower approach to this," he said.

There has been no total price tag put on the CFTC's share of Dodd-Frank reforms, which will require most types of over-the-counter derivatives to trade on exchanges or new swap execution facilities, pass through clearinghouses, and be recorded in new swap data repositories, O'Malia said.

"I think it's more expensive than we imagine, not only to the commission but to the industry, and it's going to take a lot longer than we expect," O'Malia said.

The agency's technology advisory committee, which O'Malia chairs, will discuss the costs and needs of the new market structure required to report on and track swaps trades from inception through conclusion at a Jan. 27 meeting, he said.

O'Malia is pushing the CFTC to restructure to create a new "Office of Market Data Collection and Analysis," which he said could require more spending on technology even while lawmakers push to rein in staff expansion plans.

"I think the mortgage for technology is a cheaper bill to pay than if we were going to hire many more people," he said.

"I think we need to be very careful about our hiring and where we're spending money right now," O'Malia said.

CFTC ROUNDS THE CORNER IN RULE-MAKING

The CFTC had aimed to unveil the first draft of all its rules by the end of the year, a self-imposed deadline it met for all but a handful of rules, including capital and margin requirements for swap dealers and major swap participants.

Also in the wings are its controversial curbs on speculative trades in commodity markets. The CFTC proposed a rule on Dec. 16, but commissioners have not yet agreed on whether to issue the plan for public comment.

"I think there needs to be some further negotiations and discussion among the commissioners," O'Malia said, declining to comment further on the position limit rule.

The agency aims to finalize its first major rule for the swaps market -- ownership caps and governance rules for clearinghouses, exchanges and swap execution facilities -- at its first hearing of the year, slated for Jan. 13, he said.

DISRUPTIVE TRADING A TOUGH NUT

The CFTC also needs to work on giving traders clearer guidance on three trading practices banned in the Dodd-Frank law as "disruptive," O'Malia said.

The banned practices include "banging the close" -- acquiring a big position and then offsetting it before trading ends -- and "spoofing" -- when a trader makes bids or offers but cancels them before execution.

"Providing the certainty and nailing what is inappropriate behavior is going to be very difficult," he said, adding he doubted it was even possible.

"I think we're going to be, unfortunately, too vague."

The CFTC is also looking at whether to rein in high-frequency traders using computer-driven algorithms.

That task took on more profile after the May 6 "flash crash," when markets briefly plunged before recovering. Some analysts argue algorithms contributed to the volatility, although a government review did not blame high-frequency traders for the crash.

A panel of experts examining the flash crash is slated to make recommendations to the CFTC and Securities and Exchange Commission on Jan. 26, O'Malia said.

He said he thought the CFTC should focus on recommending "best practices" to preventing high-frequency errors and runaway algorithms rather than trying to ban more types of trades.

"We're having a hard enough time defining the current (disruptive) practices. Expanding that would not help the market," O'Malia said. (Editing by Walter Bagley)

(c) Copyright Thomson Reuters 2011. Click For Restrictions. http://about.reuters.com/fulllegal.asp

The Community Guide to Early Transfer

Sustaining the health and welfare of local communities is the starting place for sustaining the health and welfare of the world. Here and everywhere we are all dependent upon a quality environment and availability of needed resources to preserve our quality of life — for all citizens

Donna nobis pacem - Grant us peace : Fide, non armis - By faith, not arms

This is the truth, as old as the hills, that life and experience teach, the poor man suffers the keenest of ills, an impediment in his reach.

02/09/2009	5	Filed Petitioner John F. Hutchens motion for adjudication and judgement on the merits, motion for appointment of project manager according to the statement of work. Served on 02/07/2009. (NEW)
02/13/2009	6	Filed Petitioner John F. Hutchens motion for injunctive relief. Served on 02/12/2009. (NEW)
02/18/2009	7	Order filed (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied. All pending motions denied as moot. (WL)
02/18/2009	8	Filed Petitioner John F. Hutchens motion for IFP, injunctive releif, and misc. releif. Served on 02/18/2009. (NEW)
02/23/2009	9	Filed Petitioner John F. Hutchens motion to reconsider order of the Court Served on 02/20/2009. (NEW)
02/25/2009	10	Filed Petitioner John F. Hutchens writ of cert. (NEW)
03/11/2009	11	Received Petitioner John F. Hutchens motion to writ of cert served on 03/09/2009 (NEW)
03/16/2009	12	Filed UNDER SEAL Petitioner John F. Hutchens motion for writ of preemptory mandamus. Served on 03/16/2009. (NEW)
03/20/2009	13	Received copy of Petitioner John F. Hutchens' motion to the Supreme Court ; served on 03/18/2009 (NEW)
03/23/2009	14	Filed order (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) The motion for reconsideration is denied. See 9th Cir. R. 27-10. All other pending motions are denied as moot. No further filings shall be accepted in this closed case. (WL)

I.	Introduction
II.	Purpose and Implementation of the NPL
III.	NPL Update Process
IV.	Contents of This NPL Update
V.	Response to Comments
VI.	Regulatory Impact Analysis
VII.	Regulatory Flexibility Act Analysis

NPL Gr 1	ST
2 3 4 4 5 5 5 6 7 7 8 8 10 11 11 12 13 13 14 14 16 16 16 16 17 18 18	OH WA ID TN CA AK SC MA GA CO FL MA NY AZ CA UT WA OH RI CA RI FL FL CA MN NY CA	Feed Materials Prod Cent (USDOE) Bonneville Power Adm Ross (USDOE) Idaho National Engin Lab (USDOE) Oak Ridge Reservation (USDOE) Treasure Island Nav Sta-Hun Pt An. Eielson Air Force Base Savannah River Site (USDOE) Otis Air Nat Guard/Camp Edwards Marine Corps Logistics Base Air Force Plant PJKS Pensacola Naval Air Station Fort Devens Brookhaven National Lab (USDOE) Williams Air Force Base Barstow Marine Corps Logist Base Monticello Mill Tailings (USDOE) Ft. Lewis Logistics Center Mound Plant (USDOE) Davisville Naval Constr Batt Center Camp Pendleton Marine Corps Base Newport Naval Educat/Training Center Jacksonville Naval Air Station Cecil Field Naval Air Station March Air Force Base Naval Industrial Reserve Ordnance Plattsburgh Air Force Base Travis Air Force Base	Fernald Vancouver Idaho Falls Oak Ridge San Francisco Fairbanks N Star Bor Aiken Falmouth Albany Waterton Pensacola Fort Devens Upton Chandler Barstow Monticello Tillicum Miamisburg North Kingstown San Diego County Newport Jacksonville Jacksonville Riverside Fridley Plattsburgh Solano County

NPL Gr 1	NPL Rank	Site Name	City/County
19 19	930 931	NY NY	Forest Glen Mobile Home Subdivision Radium Chemical Co., Inc	Niagra Falls New York City

Cost category	Average total cost per site 1
RI/FS	1,100,000
Remedial Design	750,000
Remedial Action	13,500,000 2
Net present value of O&M 3	3,770,000 2

Sponsor	Rep. Smith, Lamar (Judiciary Committee)
Date	March 01, 2011 112th Congress, 1st Session

2000	November 13: On November 13, 2000 Novartis and AstraZeneca merged their agribusinesses to form Syngenta, the first global group focusing exclusively on agribusiness.
1999	Astra AB of Sweden and Zeneca Group PCL of UK merge, becoming AstraZeneca.
1998	Novartis announces the formation of NADI, the Novartis Agricultural Discovery Institute, one of the largest single research endeavours dedicated to agricultural genomics research and development.
1997	Zeneca attains the rights to chlorothalonil from ISK. Zeneca acquires Mogen, a Netherlands-based plant Biotechnology Company. Novartis attains the crop protection division of Merck & Co, adding the insecticide abamectin to its list of products.
1996	Zeneca offers the first GM tomato puree to customers. Tomatoes were enhanced to stay ripe in the field longer, resulting in better processing. Zeneca Seeds and Cosun/ Royal VanderHave Group form the joint venture company Advanta. Zeneca's strobilurin fungicide Amistar® achieves registration. Sandoz and Ciba merge to form Novartis in one of the largest corporate mergers in history.
1994	Zeneca is established after ICI demerges three of its businesses (Pharmaceuticals, Agrochemicals and Specialties) beginning in '93.
1990	Ciba-Geigy AG acquires Maag Group.
1987	ICI acquires Stauffer Chemical Company.
1985	ICI launches its insecticide Karate®.
1983	ICI Seeds is formed to add seed-breeding capability to the business.
1980	Ciba establishes a special biotechnology unit. Sandoz acquired the Zaadunie group of Holland. Sluis & Groot (S&G)was one of the prominent marketing companies of Zaadunie. S&G is one of the three brandnames within Syngenta Seeds.
1978	Introduction of systemic fungicide Ridomil by Ciba-Geigy.
1976	Sandoz attains Northrup King.
1975	Sandoz acquires Rogers Seed Company, moving into the seed market.
1974	Ciba expands into the seeds business with the acquisition of the US-based Funk Seeds International.
1973	PPL becomes fully independent from ICI agricultural division.
1970	ICI establishes ICI Americas Inc. Ciba and Geigy merge to form Ciba-Geigy.
1964	PPL becomes apart of ICI's Agriculture Division.
1956	Geigy introduces triazine-based herbicides (Simazine, Atrazine) allowing farmers to control weeds for the first time.
1954	A group of chemicals originally discovered in 1947 were re-evaluated by ICI, leading to the discovery and development of diquat and paraquat.
1953	PPL becomes wholly owned by ICI.
1940	Dr. Bill Templeman of ICI, at Jealott's Hill, discovers the selective properties of alphanapthylacetic acid, leading to the synthesis of the herbicides MCPA AND 2,4-D.
1939	Paul Müller, a Geigy researcher, discovers the insecticidal efficacy of DDT.
1937	Plant Production Limited (PPL) is formed as a fifty-fifty joint company between ICI and Cooper McDougall & Robertson Ltd.
1935	Geigy production of insecticides.
1928	ICI begins work on the Agricultural Research Station at Jealott's Hill in the UK.
1926	Imperial Chemical Industries is formed with merger of Brunner Mond Ltd, Nobel Industries, British Dyestuffs Coronation Ltd, and United Alkali Co. Ltd.
1884	Ciba is established.
1876	Sandoz is founded.
1758	Geigy is founded.

All Information (except text)	Text of Legislation	CRS Summary	Major Congressional Actions All Congressional Actions All Congressional Actions with Amendments With links to Congressional Record pages, votes,reports
Titles	Cosponsors (26)	Committees
Related Bills	Amendments	Related Committee Documents
CBO Cost Estimates	Subjects

Activities Underway
Activity		Leading Organization	Area of Site Addressed (OU)	Start Date
	REMEDIAL ACTION ( see glossary )	EPA Fund-Financed	SEDIMENTS (05)	08/28/2008
	POTENTIALLY RESPONSIBLE PARTY LONG-TERM RESPONSE ACTION ( see glossary )	Responsible Party	SLICKROCK CREEK AREA SOURCE (04)	09/24/2004
	COMBINED REMEDIAL INVESTIGATION/FEASIBILITY STUDY ( see glossary )	EPA Fund-Financed	BOULDER CREEK AREA SOURCE (06)	09/29/1996
	OPERATIONS AND MAINTENANCE ( see glossary )	Responsible Party	OLD/NO. 8 MINE SEEP (03)	09/15/1994
	OPERATIONS AND MAINTENANCE ( see glossary )	Responsible Party	SOURCE CONTROL (02)	09/15/1994
	OPERATIONS AND MAINTENANCE ( see glossary )	Responsible Party	WATER MANAGEMENT (01)	01/02/1991

GPRA Measures at
IRON MOUNTAIN MINE (EPA ID: CAD980498612)
The data and content on this page were last updated on Tuesday, January 04, 2011.

The chemical substances (i.e., hazardous substances, pollutants, or contaminants) listed below were identified as contaminants of concern (COC) for the site. COCs are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site. Identifying COCs is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants. The contaminants of concern at this site are sorted below by contaminant name. You may also sort this list by the area of the site on which it is found, called operable units (OUs) , or sort this list according to the media in which they were found (e.g. soil or ground water) . see the glossary for definitions of contaminated media and operable units (OUs) >>


	CAS #	Contaminant Name	Contaminated Media	Area of Site Found (OU)	More Information
	7429-90-5	ALUMINUM (FUME OR DUST)	Surface Water	OLD/NO. 8 MINE SEEP (03)	ATSDR Profile
	7429-90-5	ALUMINUM (FUME OR DUST)	Surface Water	SLICKROCK CREEK AREA SOURCE (04)	ATSDR Profile
	7440-36-0	ANTIMONY	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-38-2	ARSENIC	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-38-2	ARSENIC	Sediment	SEDIMENTS (05)	ATSDR Profile
	7440-38-2	ARSENIC	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-38-2	ARSENIC	Surface Water	OLD/NO. 8 MINE SEEP (03)	ATSDR Profile
	7440-38-2	ARSENIC	Surface Water	SLICKROCK CREEK AREA SOURCE (04)	ATSDR Profile
	TBD-00000002	BASE NEUTRAL ACIDS	Soil	SOURCE CONTROL (02)
	TBD-00000002	BASE NEUTRAL ACIDS	Solid Waste	SOURCE CONTROL (02)
	39638-32-9	CADMIUM	Sediment	SOURCE CONTROL (02)
	39638-32-9	CADMIUM	Sediment	SEDIMENTS (05)
	39638-32-9	CADMIUM	Surface Water	SOURCE CONTROL (02)
	39638-32-9	CADMIUM	Surface Water	OLD/NO. 8 MINE SEEP (03)
	39638-32-9	CADMIUM	Surface Water	SLICKROCK CREEK AREA SOURCE (04)
	7440-43-9	CADMIUM	Surface Water	WATER MANAGEMENT (01)	ATSDR Profile
	7440-50-8	COPPER	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-50-8	COPPER	Sediment	SEDIMENTS (05)	ATSDR Profile
	7440-50-8	COPPER	Surface Water	WATER MANAGEMENT (01)	ATSDR Profile
	7440-50-8	COPPER	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-50-8	COPPER	Surface Water	OLD/NO. 8 MINE SEEP (03)	ATSDR Profile
	7440-50-8	COPPER	Surface Water	SLICKROCK CREEK AREA SOURCE (04)	ATSDR Profile
	7439-89-6	IRON	Sediment	SEDIMENTS (05)
	7439-92-1	LEAD	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7439-92-1	LEAD, INORGANIC	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7439-92-1	LEAD, INORGANIC	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7439-97-6	MERCURY	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7439-97-6	MERCURY	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-02-0	NICKEL	Sediment	SEDIMENTS (05)	ATSDR Profile
	7440-22-4	SILVER	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-22-4	SILVER	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-28-0	THALLIUM	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-28-0	THALLIUM	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-31-5	TIN	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-66-6	ZINC	Sediment	SOURCE CONTROL (02)	ATSDR Profile
	7440-66-6	ZINC	Sediment	SEDIMENTS (05)	ATSDR Profile
	7440-66-6	ZINC	Surface Water	WATER MANAGEMENT (01)	ATSDR Profile
	7440-66-6	ZINC	Surface Water	SOURCE CONTROL (02)	ATSDR Profile
	7440-66-6	ZINC	Surface Water	OLD/NO. 8 MINE SEEP (03)	ATSDR Profile
	7440-66-6	ZINC	Surface Water	SLICKROCK CREEK AREA SOURCE (04)	ATSDR Profile

Final Site Assessment Decision	Yes (12/30/1982)
Human Exposure Under Control	Under current conditions at this site, potential or actual human exposures are under control.
Contaminated Ground Water Migration Under Control	EPA is working to ensure that contaminated ground water migration is under control.
Construction Complete	No
Site-Wide Ready for Anticipated Use	No

Virginia Statute for Religious Freedom (1786)

Thomas Jefferson

Senator Boxer Begins Work on Water Resources Development Act

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

(c) Timing and Effect of the Motion.

(d) Other Powers to Grant Relief.

(e) Bills and Writs Abolished.

Rule 71.1 Condemning Real or Personal Property

(a) Applicability of Other Rules

(b) Joinder of Properties

(c) Complaint.

(d) Process.

(e) Appearance or Answer.

(f) Amending Pleadings.

(g) Substituting Parties.

(h) Trial of the Issues.

(i) Dismissal of the Action or a Defendant.

(j) Deposit and Its Distribution.

(k) Condemnation Under a State's Power of Eminent Domain.

(l) Costs.

Entering onto Land, for Inspection and Other Purposes

Rule 34.

Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General.

(b) Procedure.

(c) Nonparties.

Rule 64. Seizing a Person or Property

(a) Remedies Under State Law — In General.

(b) Specific Kinds of Remedies.

Rule 70. Enforcing a Judgment for a Specific Act

(a) Party's Failure to Act; Ordering Another to Act.

(b) Vesting Title.

(c) Obtaining a Writ of Attachment or Sequestration.

(d) Obtaining a Writ of Execution or Assistance.

(e) Holding in Contempt.

Rule 72. Magistrate Judges: Pretrial Order

(a) Nondispositive Matters.

(b) Dispositive Motions and Prisoner Petitions.

Rule 73. Magistrate Judges: Trial by Consent; Appeal

(a) Trial by Consent.

(b) Consent Procedure.

(c) Appealing a Judgment.

Rule 23. Class Actions

(a) Prerequisites.

(b) Types of Class Actions.

(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.

(d) Conducting the Action.

(e) Settlement, Voluntary Dismissal, or Compromise.

(f) Appeals.

(g) Class Counsel.

(h) Attorney's Fees and Nontaxable Costs.

Rule 24. Intervention

(a) Intervention of Right.

(b) Permissive Intervention.

(c) Notice and Pleading Required.

Water

Air/ Climate

Wildlife/ Lands

Environmental Justice

Superfund: Information on the Nature and Costs of Cleanup Activities at Three Landfills in the Gulf Coast Region

Ciba-Geigy

Sandoz

After the merger

EMERGENCY COMMAND OFFICER - PRINCIPALS' INSPECTOR GENERAL; 925-878-9167 or john@ironmountainmine.com

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(a) Motion for an Order Compelling Disclosure or Discovery.

(b) Failure to Comply with a Court Order.

(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(e) Failure to Provide Electronically Stored Information.

(f) Failure to Participate in Framing a Discovery Plan.

Depositions to Perpetuate Testimony

(a) Before an Action Is Filed.

(b) Pending Appeal.

(c) Perpetuation by an Action.

§ 636. Jurisdiction, powers, and temporary assignment

New Energy Department office seeks ideas for energy solutions on tribal lands

Resolution suggests D.C. cede 35,000 square miles of state

Improving Regulation and Regulatory Review - Executive Order