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Oil Pollution Act Water Law Summer 2010 V4

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  • 1. Applied Administrative Law: Oil Spills and Water Law Neal R. Axton, Information Resources Summer, 2010
  • 2. Roadmap
    • Sources
      • eCFR from GPOAccess
      • Regulations.Gov
    • Cyclical Nature of Law
    • Executive Agencies
      • CEQ and NEPA Revisied
      • MMS
      • Oil Pollution Law
      • Remediation and Water Pollution
  • 3. Free and Current!
  • 4. Cyclical Nature of Law Congress Legislation & Codification Executive (President) Veto & Signing Statements Executive (Agencies) Regulation & Enforcement Judiciary Interpretation & Gap Filling
  • 5. Executive Branch Documentation Congress Legislation & Codification Executive (President) Executive Orders Executive (Agencies) Formal & Informal Rule-Making Judiciary Injunctions & Invalidation
  • 6. Informal Rule-making Process
    • Advanced Notice of Proposed Rule-Making
    • Proposed Rule
    • Comment Period
    • Final Rule
    • Variations on a theme
  • 7. Some Other Options
    • Second Proposed Rule
    • Proposed Rule with no Final Rule
    • Interim Proposed Rule
    • Interim Final Rule
    • Executive Orders
  • 8. http://bit.ly/qMYiM
  • 9. GSA Regulatory Help: Reginfo.Gov
  • 10. Oil Spills and Water Law
      • Will I be tested over this?
      • Administrative procedure
      • Administrative policy
      • Interface of statutes, regulations, cases, politics & public policy
  • 11. Environmental Impact Statements
    • The federal Minerals Management Service, which regulates offshore oil and gas production and collects reports on spills as small as a single barrel, was so confident of [deep sea drilling] system that it exempted BP from filing an environmental impact statement for the Macondo operation.
    • - Peter Coy and Stanley Reed, Lessons from the Spill , Business Week, May 10, 2010, available at http://bit.ly/9jIAIM
  • 12.  
  • 13. Simple Search
  • 14. Filter
  • 15.  
  • 16.  
  • 17. Metadata!
  • 18. Federal Register Document Number
    • Formerly Regulation Identification Number or RIN
    • Tracking Iterations of Rule
      • Proposed Rule
      • Amended Proposed Rule
      • Second Proposed Rule
      • Interim Final Rule
      • Final Rule
  • 19. Searching by FR Number
  • 20. Unified Agenda
  • 21.  
  • 22. Regulatory Agenda
    • What do agencies plan to regulate in the next six months
    • What regulations need updated
    • Notice
    • Fair Warning to Counsel
    • Back to our story…
  • 23. Searching by FR Number
  • 24. Preamble – Unique to Federal Register Not included in CFR (Only Final Rule)
  • 25. NEPA Website
  • 26. Proposed Rules
  • 27. Proposed Rules Redux
  • 28. Categorical Exclusions
  • 29. Categorical Exclusions
  • 30. Cyclical Nature of Law Congress Delegate Power to Agency Executive (President) Executive Orders Executive (Agencies) Implement Congress’ Vision Judiciary Ensure Agencies do not exceed authority
  • 31. Problems at MMS Denver Office
  • 32. MMS Oil and Gas in Gulf – Criminal Charges
  • 33. Cyclical Nature of Law Congress Delegate Power to Agency Executive (President) Executive Orders Executive (Agencies) Formal & Informal Rule-Making Judiciary Hold Agencies Accountable
  • 34.
    • [N]othing is so local as a drop of water, or so national as what we do with it.
    • - Representative Sidney R. Yates (D-IL)
    • 111 Cong. Rec. 8674 (1965) (from the House floor debate on the Water Quality Act of 1965).
    The Commonwealth
  • 35. Long Legislative Interest in Water Safety
    • The Rivers and Harbors Act of 1899: 30 Stat. 1151
    • Public Health Service Act of 1912: 37 Stat. 309
    • Oil Pollution Act of 1924: 43 Stat.604
  • 36. Pollution Revisited
    • Oil Pollution Act of 1961: 75 Stat. 402
    • Oil Pollution Act Amendments of 1973:
    • 87 Stat. 424
    • Oil Pollution Act of 1990: 104 Stat. 484
  • 37. Aliases
    • Oil Pollution Act of 1990
    • OPA 90
    • H.R. 1465 (101 st Congress)
    • Pub. L. 101-380
    • 104 Stat. 484
    • 33 U.S.C. 2701 et seq.
    • 33 U.S.C. §§ 2701-61
  • 38. Citation Review
    • Public Law (Pub. L. or P.L.)
    • Statutes At Large (Stat.)
    • Public Law 101-380, 104 Stat. 484 (1990)
    • Public Law 101-380 was 380th law adopted by 101st Congress.
    • It is published in the Statutes at Large in Volume 104 on Page 380
    • Public Law 101-380 became law in 1990.
    • Remember that Congresses span two calendar years.
  • 39. Evolution
    • Why use Statutes at Large versus public law number?
    • Why use Statutes at Large versus United States Code ?
    • Why not use United States Code Annotated ?
  • 40. Memes & Memory
    • Popular Names
    • Populist Names
    • Oil Pollution Act or OPA
  • 41.  
  • 42. Hein
  • 43. Popular Name on Hein
  • 44. Popular Name Table on Westlaw
  • 45. Popular Name Table
  • 46. Enactments
  • 47. Process of Codification
  • 48. Law Revision Counsel of House of Representatives
  • 49. Westlaw Version of Public Law
  • 50. Damages
  • 51. Cyclical Nature of Law Congress Legislation Executive (President) Executive Orders Executive (Agencies) Formal & Informal Rule-Making Judiciary Construction of the Law
  • 52. Remediation & Federal Water Pollution Control Act
    • Clean Water Act of 1977, aka CWA
      • Public Law 95-217
      • Codified at 33 USC 1251 et seq.
    • CWA amended and strengthened the Federal Water Pollution Control Act, Public Law 80-845, 62 Stat.1155 (1948).
    • Legacy of Oil Spill will be polluted waters.
  • 53. Clean Water
    • Everything that man himself injects into the biosphere - chemical, biological or physical - can ultimately find its way into the earth's water. And these contaminants must be removed, by nature or by man, before that water is again potable.
    • - Charles C. Johnson, Jr., Asst. Surgeon General
  • 54.
    • Water Quality Standards (WQS)
    • Designated Uses (DU)
    • Higher use = cleaner water
      • Drinking, Swimming
      • Fishing, Farming
    • Lower Use = more polluted
      • Industrial Discharge
      • Thermal Transfer
    1972 CWA Innovations
  • 55. Multiple Designated Uses
    • Source: http://bit.ly/12fdjG
  • 56. Cleaning the Water
    • National Pollutant Discharge Elimination System
    • Permits Required to Discharge Waste Water
      • Point Sources
        • Factory Discharge
        • Sewage Discharge
        • Feedlot Discharge
        • Thermal Discharge
    • Exempted by Statute from NPDES
      • Non-Point Sources
        • Irrigation
        • Fertiliser
        • Herbicide
        • Insecticide
    • Grey Area: Irrigation Return Flows, exempted
  • 57. Highlights of CWA
    • Section 303 & 307 – EPA defines pollutants
      • 1972 law gave EPA 90 days to define
      • EPA missed deadline
    • Once pollutants identified, States implement Total Maximum [Waste] Daily Loads
    • State TDMLs to be approved by EPA
    • If not approved, EPA to create TDML
      • (Section 402 takeover provision)
    • No staffing for EPA to set TDMLs
    • Role of Citizen Suits & NGOs
  • 58.  
  • 59.  
  • 60. NPDES Proposed Rule’s Preamble - 1978
  • 61. Final Rule – NPDES Preamble
  • 62. Executive Orders in the Code of Federal Regulations
    • Published for current year ONLY
    • Title 3 of CFR
    • Historically in Federal Register
    • Collections of Presidential Papers
    • My favorite site for Executive Orders:
    • http://www.archives.gov/federal-register/executive-orders/
    • or http://bit.ly/1BsbGa
  • 63.  
  • 64. Browse and Update!
  • 65. Currency
  • 66.  
  • 67. Federal Register
  • 68.  
  • 69. Updating of Executive Orders at NARA
  • 70. Questions or Comments
    • Neal.Axton at the domain wmitchell.edu
    • Reference at the domain wmitchell.edu

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