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MUTUAL AID SOCIETY OF AMERICA, INC. 103 Methodist St., Cecilia, KY 42724 Cell) 270-307-4857; Office) 270-862-4537 Skype) 270-872-4493; Fax. 270-862-4379 email) jimmiller5417@gmail.com
September 5, 2011
Mr. Joseph Williams
Associate Regional Counsel
Office of Regional Counsel
USEPA Region 5 (C-14J)
77 West Jackson Blvd.
Chicago, IL 60604-3590
(312) 886-6631(phone)
(312) 692-2965(fax) Email) Williams.Joseph@epamail.epa.gov

Re: Notice of Dispute on behalf of Mutual Aid Society of America, Inc.; Ninth Supplemental Brief, EPA GLNPO-2011-is-2-1356
Dear Mr. Williams:

Summary This Ninth Supplemental Brief examines the low score attributed to MASA's application put forth by EPA evaluators, challenges their facts, the content of their (implied) arguments and the failure of the review process. The ratings attributed to the five chosen applications failed to “support” the FOA criteria. Criteria was applied which was not in the original FOA as a cardinal rule. Doubt is also cast on the sever strictures the FOA placed on applicants who submit proposals for effective means of Asian carp population using a complicated fishery system. While MASA has received the evidence of and some of the reasoning for the scores to the applications receiving an award, the summary hardly explains the reasoning, hence the notes and memorandum of the reviewers and the notes take at any of the meetings become material to understanding the reasoning for the awards and consequently, the reasoning for the denial of MASA's application. The EPA FOIA office refused disclosure of the reasoning contained in the notes without legal justification. MASA received the scores for its application but no reasoning. Notwithstanding, based on other evidence we can proceed with some deductive reasoning which logically affords some basis for refutation of the awards and the denial MASA's application. Lastly, the nature and scope of the nominal criteria, in light of the application of the criteria, indicates that the criteria were skewed in favor of public institutions and against non-profit and entrepreneurial companies so much so that the latter had no realistic chance of an award; essentially they were “ruled-out” before the FOA was issued. Thus, the entire grant for Category I.B.2 process was arbitrary, unreasonable and capacious and was greatly flawed.
  1. FAILURE OF REVIEWERS TO RECOGNIZE SUPERIOR MERIT OF THE MASA APPLICATION AND GIVE IT THE HIGHEST NUMBER OF POINTS
    1. Miss-allocation of funding. MASA's Application received the lowest score of 26.04. While one reviewer scored the application at 58.5 and the next reviewer scored it at 3; the overall average of the five reviews was 26.04. The award in fifth place received a rating of 67.68. All of the five awards were made for the full amounts, thus totaling $1,568,938, oversubscribing the 1.5 million allocated to Category I.B.2 by $68.938. This mis-allocation of funds indicates a fundamental failure to examine the individual project budgets for trimming to meet the announced allocation of 1.5 million. It also indicates an arbitrary award to the “winners” without carefully allocating some funds to the applications farther down on the rating list which had very close scores; three had scores in the 60's.
    2. Criteria and application intentionally designed to favor academic and other government supported institutions
From the outset of the formulation of the criteria, the drafters intentionally create a “sweetheart” set of criteria and “instructions” which insured that the colleges, universities, and other Federally funded organizations would receive the grants. Not only were the grant applications fully funded without regard to other meritorious applications, but little regard was give by the reviewers to the announced criteria as opposed the ex post facto internally generated criteria. The criteria of “collaboration, partnership, program capability and past performance combined to heavily favor well-established organizations which had received Federal funding (from various sources) in the past and had had the opportunity to build their business and social networks. The application of this general criteria was further skewed to the larger academic institutions and a state agency. This skewing results in the further build-up of the status quo – more of the same, only bigger. MASA demonstrated its “partnerships” by adding the resumes of James E. Miller, BA, BS, JD; J. Garrett Smith, PE, and Shams Rehman, BS, MS, plus projected a fair number of other professionals who would be added to the team once the award were made. As to each professional team member a Scope of Work was stated, the hourly rate, the estimated number of hours and the cap for each discipline was stated. MASA thus quantified its team's efforts, whereas no such quantification on an individual basis was made by the five awardees. Without a budget tied to a detailed task list as was provided by the MASA application, no valid opinion could be rendered by any reviewer as to the adequacy of the budget to accomplish the work intended. Further, without a defined task list, each related to a result, no valid rating could be applied to assess the outcome. Thus the laudatory phrases, “The overall budget is reasonable for the work and the expected environmental benefits,” [Project 2(H).] is a hoax.
    1. Job creation. In comparison to the jobs to be created by MASA (50 in the shipyard, 50 in the fishery fleet), the awardees abjectly failed this criteria, yet received valuable points.
      1. Project 1: Bait shops. “Job creation is not strength of this project. This proposal includes supporting research staff, but not connected to longer term employment. The average score for Criteria F is 2.40/5.” MASA's average score for job creation was 1 for 100 long-term, permanent, high-paying jobs.
      2. Project 2: Watercraft inspection. “Job creation is adequate. Much of the funding goes to hiring new staff for the inspections. However, this staff is temporary and long-term funding is not guaranteed. The project potentially lays the groundwork for future job creation.” No quantification is mentioned. Compare the award of 3.60 to MASA's one point, yet MASA's 100 jobs are long-term, permanent, high skill and high-paying jobs. cause harvesting and processing Asian carp is currently profitable to existing processors, Carp Catcher's Commercial Fishery will be profitable and long term. The “future jobs” for Project 2 were not defined, no employer identified and no source of funding mentioned.
Upon inspection of the watercraft, what if the inspector “finds” something? What is the follow-through? Apparently there is none.
      1. Project 3: Public Relations exposure. “Job Creation Job creation could be improved to score higher. It is limited in scope to the funding of salaries through sub awards and modest purchasing. The average score for Criteria F is 2.00/5.” Again, no quantification, no scope of work, no hourly rate, no estimated hours and no cap.
No job is tied to one or more defined tasks so we don't really know what the Project 3 employees are going to accomplish with their time and efforts. The scope of work is: “The project targets fifteen invasive species pathways, including the pet and aquarium trade, water gardening, and bait production.” Nothing is said about taking samples of “customers” of the media output and having the responses compared to reduction AIS threats. Without such metrics, Project 3 is a glorified public relations effort with no measurable results. The Carp Catchers probable annual harvest of 10,800,000 pounds of Asian carp is a significant, measurable event.
      1. Project 4: Examining live plant trade. “The job creation benefits of the project are speculative and somewhat vague. The average score for Criteria F is 2.00/5.” The reviewers were so unimpressed that they only gave this “speculative” job creation effort a “2”, while MASA received a “1” for a non-speculative, long-term, persistent job creation prospect of about 100 highly-paid workers.
      2. Project 5: Boat washing. “The project would require significant changes to the application to promote significant job creation. Work will provide some temporary employment and help justify ongoing staff position. The average score for Criteria F is 1.60/5.” Essentially, no new jobs would be created – only the continuation of the existing staff. This lackadaisical effort merited six-tenths of a point higher than Carp Catcher's one point for about 100 employees.
    1. Environmental Justice. Most of the awardees' evaluations for environmental justice was on the low side. In the context of the FOA, environmental justice should have two sides: Diminution of the invasive threat and improvement of the species which are or would be adversely affected by the invasive species sought to be mitigated. The five awardee's efforts toward this result failed the dual test whereas MASA's application clearly wins the test.
      1. Project 1: Live Bait: “The response to this factor could be improved. The project will more generally benefit resource/recreation users in the Great Lakes. The average score for Criteria C is 2.00/5.” As shown above, the DNA results parsed back to the bait shop vendors reaches them way too late to prevent the sales of live bait to the customers. The targets of the DNA studies were chosen wrongly. If DNA studies are to be made and become effective, they ought to be made upon the live bait at the point of production – either pond raised or live caught, not at the retail point of sale.
Further, there was nothing in Project 1 to confiscate any of the live bait which proved to be Asian carp – another gaping hole in the project design. The only value would be a metric which established that live bait sold at retail had some percentage of live Asian carp included in the inventory, but with no ability to trace that inventory back to the point of origin – the live bait producer. This greatly flawed project strikes hard at the environmental justice issue since no help is given any adversely impacted species. Contrasted to the MASA approach of using conveyor belt sorting tables and immediately returning native fish to the river, alive and unharmed, via soft cushioned water slide tubes, Project 1 should have received a zero and the Carp Catcher Project a 5.
      1. Project 2: Recreational boat inspection: “The response to this factor could be improved. The project will more generally benefit resource/recreation users in the Great Lakes. The average score for Criteria G is 2.00/5.” This project proposes to make 14,000 recreational boat inspections to assess the contamination potential of these boats. Applying the dual test for environmental justice, nothing in the proposal attempts to identify or quantify any of the invasive species found or to take action once they are found such as mandatory boat cleaning. Project 2 fails the other half of the test, in that no “benefited” species is identified; not is it explained how such inspections will reduce the threat of invasion with respect to invasive species already present in the Great Lakes.
Contrasted with the Carp Catcher's solution, Project 2 should have gotten a zero and the MASA application a 5. The Carp Catcher's operation proposes to harvest about 12 million pounds of fish a year of which about ten percent is expected to be non-Asian carp which will be returned to the river. The removal of the ninety percent which are the Asian carp will benefit the native fish by providing an increased food supply for the native fish.
      1. Project 3: Public relations exposure: “The response to this factor could be improved. The project will more generally benefit resource/recreation users in the Great Lakes. The average score for Criteria G is 2,00/5.” Not only is the subject of invasive species widely covered by the media and has been for many years, numerous government agencies and private organizations have joined the fight, of which I request you to take judicial notice. Ample publicity of the general nature to be offered by Project 3, is found in the many government programs and university/college programs, a small sample of which are:
        1. Google Search: Invasive species list: 2,999,000 hits. The following appear on page one of the search results:
        2. USDA Invasive Species: http://www.csrees.usda.gov/invasivespecies.cfm
        3. The Nature Conservancy: http://www.nature.org/ourinitiatives/habitats/forests/howwework/protecting-native-plants-and-animals-taking-on-the-invaders.xml?s_eng=google&s_ce=normal&s_med=ppc&s_dis=search&s_cs=text&s_cid=Invasive+Species+(GG)&s_ag=Invasive+Species+List&s_kwd=invasive%2520species%2520list&s_mt=e&gclid=CK7Xj_rThqsCFQK87QodnSxHOA
        4. Wikipedia: http://en.wikipedia.org/wiki/Lists_of_invasive_species
        5. USDA/ National Invasive Species Information Center: http://www.invasivespeciesinfo.gov/animals/main.shtml
        6. Global Invasive Species Database: http://www.invasivespeciesinfo.gov/animals/main.shtml
        7. Invasive and Exotic Species Profiles: http://www.invasive.org/species.cfm
        8. Invasive and Exotic Species of North America: http://www.invasive.org/
        9. Minnesota DNR Invasive Species: http://www.dnr.state.mn.us/invasives/index.html
        10. State of Idaho, Dept. Agriculture Invasive Species list: http://www.agri.state.id.us/Categories/Environment/InvasiveSpeciesCouncil/InvSppList.php
        11. North Carolina Native Plant Society invasive species list: http://www.ncwildflower.org/invasives/list.htm
        12. New York Department of Environmental Conservation invasive species list: http://www.dec.ny.gov/animals/63402.html
      2. Google search for invasive species educational resources: 5,850,000 hits; then filtered to those relevant to Asian Carp: 226,000 hits, including this small sample:
        1. USDA – National Invasive Species Information Center – Asian carp: http://www.invasivespeciesinfo.gov/aquatics/asiancarp.shtml
        2. USFWS - Great Lakes Basin Ecosystem Team – Invasive Species: http://www.fws.gov/midwest/greatlakes/invasives/index.htm
        3. Aquatic Nuisance Species Project: http://www.aquaticnuisance.org/
        4. Minnesota DNR – Bighead and Silver Carp: http://www.dnr.state.mn.us/invasives/aquaticanimals/asiancarp/index.html
        5. Wordpress: Solution to Asian carp problem may be in kitchen; http://edmortimer.wordpress.com/2011/09/04/solution-to-asian-carp-problem-may-be-in-kitchen/
      3. Google Search on University extension service invasive species: 1,570,000 hits, a very small sample of which are:
        1. USDA list of academic extension services re: invasive species: http://www.invasivespeciesinfo.gov/toolkit/expertise.shtml#univ
        2. University of Maine – Cooperative Extension Publications, http://umaine.edu/publications/2500e/
The lists, publications, organizations and financial resources devoted to invasive species is almost endless – and that is just in the United States. The organizations of other nations and international organizations add many more layers to the mix. As can be inferred from the evidence adduced above, the $400,000 award to the University of Minnesota is more of an emolument to continue the flow of federal cash to the MN university system than to support any realistic expectation of a fundamental shift in public knowledge of invasive species or in the public's ability and willingness to change their behavior in favor of mitigating the presence and persistence of invasive species. Nothing in Project 3 specifically addresses Asian Carp threat to the Great Lakes. Nothing in Project 3 provides results for the dual test of environmental justice, that of mitigating the threats of invasive species and benefiting the favor species which the invasive species are threatening. The MASA application does both.
      1. Project 4: Live plant trade: “The response to this factor could be improved. The project will more generally benefit resource/recreation users in the Great Lakes. The average score for Criteria C is 2.20/5.” This comment is the same one employed for Environmental Justice for Project 3. Instead of the general, shotgun approach of Project 3, Project 4 at least focuses on vendors likely to distribute invasive species. Yet, properly analyzed and rated, it is nothing more than a public relations effort directed at a smaller audience than that of project 3. MASA's comments relative to Project 3 and equally applicable to Project 4.
      2. Project 5: Boat washing: “The response to this factor could be improved. The project will more generally benefit resource/recreation users in the community. Application suggests a benefit of protecting lakes in this region for the benefit of subsistence anglers, but does not provide more detailed information. The average score for Criteria G is 3.00/5.” Apart from repetitive use of the first two sentences, the criticism by EPA is lighter than that give to most of the other Projects as to environmental justice. Project 5, like its filial awardees, fails the dual test of environmental justice because of the lack of metrics concerning the “count” of invasive species cleaned from “subsistence” angler's boats and the impact on favored species which such invasive aquatic would harm. Again, the MASA application passes both sides of the environmental justice test. It even goes much further with the advanced technologies to be employed in the fields of energy, propulsion, fish processing and marketing of Silverfin.
The above “findings” represented by the quotes from the EPA's own evaluation of job creation and environmental justice of the five awardees' projects, should convince you that the criteria chosen was heavily skewed toward “status quo” universities and government-supported agencies, that the criteria was applied unevenly in favor of the relative ineffectual projects and against those having more robust outcomes as to the issues, and that the results derived by the reviewers were clearly erroneous, unfair, arbitrary, unreasonable, unlawful and capricious. The pattern is emerging that the reviewers really didn't care much about the ratings given across the board, but only to the five favored intended awardees. Their blatant disregard of job creation and environmental justice, by their own admission, is sufficient evidence of this distorted rating system. There's more.
  1. FAILURE OF REVIEWERS TO WEIGH THE SERIOUSNESS OF THE THREAT OF ASIAN CARP INVASION.
Despite enormous media coverage, two U. S. Supreme cases, much dithering about in Congress and the White House, the reviewers were blithely unaware of the seriousness of the threat of the invasion of the Great Lakes and their tributaries by the massive wall of Silver and Big Head less than 20 miles from Lake Michigan. If the reviewers had bothered to read MASA's Narrative Statement, they would have learned from this excerpt: “Significance of the vectors to the project area There are in reality two major consequences to a massive Asian carp invasion such that of the Great Lakes which could suffer a seven billion dollar annual loss to its fisheries and a 6.5 billion dollar annual loss to the tourist industry were Asian carp to gain a population strangle-hold on the native fish of the Great Lakes.
The major impact of Asian carp to the national waters of the Mississippi Basin where infestation occurs is a major blow to the native fish population. That same blow would be dealt to the native fish of the Great Lakes and its tributaries, were the Asian carp invasion allowed to take place. In some areas, such as the Illinois River, ninety-five percent of the fish biomass are carp. In a sense, this situation is the same as if the native fish were severely over-fished. The significance of the solution proposed is to remove only the carp and return the native fish to their habitat. This type of operation can only be accomplished by the sorting done on the Carp Avenger. Gill nets used by current fishermen kill all the fish and does nothing to change the balance of fish biomass. See more on by-catch below. While the primary mission is to remove the Asian carp, the positive effect on the native fish population should not be ignored.
“Estimates the net impact of the proposed prevention activities on the vector The proposed carp catching system is designed to catch and process 4000 pounds of fish per hour, returning about five percent, being the native fish, to the river. The harvesting operation will run two shifts of six hours each, Monday through Friday, which is calculated to obtain about 240,000 pounds of fish per week, of which roughly 95% will initially be Asian carp or about 228,000 pounds if full catches repeat themselves. If the average carp weighs about 20 pounds, that would mean the removal of about 11,400 fish per week or 592,800 fish per year (11,856,000 pounds of fish / 20).” Further, they might have learned about the Asian carp invasion from the EPA's website devoted to the topic: http://asiancarp.org/ They might have learned even more by visiting the website of the Alliance for the Great Lakes: http://www.greatlakes.org/invasivespecies
  1. FAILURE OF EPA TO SECIFICALLY NAME AND PROMOTE THE MITIGATION OF THE THREAT OF ASIAN CARP
    1. The U.S. EPA Great Lakes Restoration Initiative Request for Proposals dated January 13, 2010, [ http://www.epa.gov/greatlakes/fund/2010rfp01/ ] failed to mention “Asian carp” as an invasive species.
    2. The U.S. EPA Great Lakes Restoration Initiative 2011 Request for Applications [ www.epa.gov/glnpo/fund/2011rfa01/2011rfa01_mod_1.pdf ] deals with invasive species but a search (control+F) for “Asian”, “carp” “Fish” yield no results.
    3. The Asian Carp Control Framework, dated May, 2010, [ www.asiancarp.org/.../AsianCarpControlStrategyFrameworkMay2010.pdf ] is an extensive report on the Asian carp invasion and control methods; apparently the reviewers were unaware of this publication, as were the authors of the this contested FOA and awards.
    4. An updated version of the above document, the 2011 Asian Carp Control Strategy was released December 16, 2010 [ http://asiancarp.org/news/2011-asian-carp-control-strategy-framework-released/ ]
The paucity of the mention of the threat of the Asian carp invasion in the first two documents as contrasted to the abundance of information in the second two documents, would indicate that the reviewers may have read the first two, but most definitely did not read the second two. They must also have been unaware or ignored the 78.5 million dollars allocated by the Obama Administration specifically to fight the Asian carp invasion. They apparently were also unaware or chose to ignore that President Obama had appointed a Carp Czar who now has an assistant. It appears from this indisputable evidence that there is a deep cleavage within EPA concerning the threat of the Asian carp invasion, namely those who are in charge of the grant administration have totally distanced themselves from the issue of the Asian carp invasion by intentionally down grading the MASA application and awarding grants to “more of the same only bigger” awardees whose projects do not involve depopulating Asian carp. This intentional blindness and refusal to act against the Asian carp invasion calls for Congressional oversight. The failure to treat seriously the job creation as a means of making a small dent in the unemployment rate in the mid-west and northern states, is also arbitrary, unreasonable and capacious, and calls for Congressional oversight.
    1. Choice of reviewers. The mindsets of the persons chosen to review the applications and their attitudes determined the outcome. Fair and impartial persons would evaluate each application on its merits. For instance, Reviewer B gave the MASA application zeros for ten of the 13 categories of evaluation. Such behavior indicates that Reviewer B approached the MASA application with a predetermination to “kill” its application by not simply giving it a low score, but a zero scores so as to draw down the average of the scores of all the reviewers. It is as if Reviewer B treated the MASA application as a zombie and drove a wooden stake through its heart. EPA cannot now successfully assert that Reviewer B was “impartial” or that he/she was free of major conflicts of interest (either intellectual or economic).
    2. Reviewers C through E must have been drawn from academic circles or from persons closely allied with academia or government, thus their bias in favor of the universities, colleges and government would be played-out as they awarded major points to the five awardees and down-graded the remaining applications.
  1. EPA FOIA OFFICE REFUSAL TO PROVIDE DISCLOSURE, OBFASCATES THE REASONS FOR AWARDS AND NON-AWARDS AND PREVENTS A FAIR HEARING OF HIS APPEAL.
The FOIA office has refused to grant disclosure of the identity of the reviewers and their notes and reports. Further, during the three days of discussions among the reviewers, no indication is given that notes were taken nor a audio recording was made of the deliberations. Without that information, one can only infer from the existing evidence that Reviewers B though E had express open hostility toward the MASA application and cast doubt on the use of depopulation of Asian carp as the best means of mitigating the threat of invasion into the Great Lakes watershed. One can infer that Reviewer B held some sway over Reviewer's C through E and influenced their opinions of the MASA application. For instance, the third criteria, “Measuring and Tracking Progress” received a 4 from Reviewer A and zeros from Reviewers B, C & E and a 1 from D. Yet, that criteria was not one listed for the reviews given the five awardees, a clear discrimination and denial of equal protection of the substantive law. A review of the notes and reports from the Reviewers would likely shed light on the reasoning advanced by Reviewers B through E for their low scores for each of the categories of the MASA application review ratings. Mr. Chris Korleski in his letter dated August 30, 2011, denying disclosure, stated: “The basis for both withholding documents and for redacting this information under Exemption 5 is the deliberative process privilege recognized under common law.” Mr. Korleski is probably not a lawyer and can be forgiven for his error of referencing the “common law”. There is no “common law” at the Federal level, since the Constitution with the amendments, acts of Congress and treaties, constitutes the Federal law, to the exclusion of all other law. Erie Railroad v. Tompkins. At the state level, the “common law” was that which was practiced in England at the time of the colonies. Subsequently, David Dudley Field wrote the initial “Field Code” for the State of New York which after it was adopted, was adopted by California and many other states. When the legal issue of the codes versus the “common law” came to be decided the supreme courts held that the enacted codes had primacy over the “common law” and that the “common law” could be used as the rule of law where the code was silent on a given issue. However this resolution applies to State issues, not to Federal issues. Source: Wikipedia.org: http://en.wikipedia.org/wiki/David_Dudley_Field_II Thus, no reliance can be given to “common law” to stifle disclosure of the identity of the Reviewers nor of their notes, reports, memorandae or transcript of oral discussion or notes thereof. The appeal from denial of disclosure has been put in motion to the National Freedom of Information Officer, U.S. EPA, FOIA and Privacy Branch. Unfortunately the resolution of that appeal will likely happen long after your decision is made and your decisional process will not have benefited from the reasoning of the Reviewers, had it been disclosed in a timely manner. I request the application of res ipsa loquatur, as it were, and put on EPA staff the burden of producing evidence and a preponderance of convincing power in opposition to each point made by MASA by these briefs.
  1. MASA'S APPLICATION REASONABLY MET THE RATING CRITERIA AND EXCEEDED COMPLIANCE OFFERED BY THE APPLICATIONS TO WHICH AWARDS WERE MADE.
In fact, MASA did comply with any reasonable interpretation of “Measuring and Tracking Progress” by the prior submissions, Critical Milestone and Status of Carp Catchers Project – Outline Format. By way of example of a fully developed PMP, I had previously submitted to you an Excel spreadsheet of the Solar Furnace PMP which had been previously submitted to EPA and found in compliance with that FOA, Solar Furnace Time Line and Budget. In face of the calculated inability to receive additional documents via the application submission process, a fully developed PMP for the MASA working drawings and specifications could not have been submitted via the submission process. The application indicated a two year term for the grant. Further it proposed a “stages and gates” approach which provides for incremental review at each “gate” or milestone. MASA's attempt to describe these approaches is in the application. The “stages and gates” approach, while not necessarily precluding a fully developed PMP at the application stage, nevertheless is a well known and accepted device to systematically provide a substitute for a fully developed PMP at the application stage. One can infer from the low scores by Reviewers B through E that they did not bother to read the MASA Narrative Statement.
  1. EPA INTENTIONALLY DIRECTED THE AWARDS APRIORI
      1. The Application. If there was any short-fall in the scope and depth of the MASA application, such shortfall was caused by EPA's failure to allow applicants to attach relevant documents in further explanation and documentation of their limited, 20 page Narrative Statements. As has been demonstrated beyond any doubt, MASA could have submitted many additional documents in support of the various categories of evaluation.
      2. The Flaw. It may well be that the flaw in EPA's approach is thinking in terms of “competition” when making the announcement of an invitation to submit a proposal, but then abandoning the idea of competition, once the deadline passes. The awarding of “points” is simply a “window dressing” exercise, especially if the reviewer do not file a formal report of their evaluation for all to read. Keeping the notes secret simply proves the obvious that there was never any intent on the part of EPA to introduce competition, then have a fair evaluation subject to public scrutiny. The obvious conclusion is that the “winners” were picked long before the review process started and the “instructions” were accompanied by discussions and suggestions of how the EPA deciding officials wanted the outcome. The accolades and points were awarded ex post facto to the real decision as to which awardees were to receive the grants.
      3. The other Flaw. Real estate appraisers write reports which are sometimes carefully examined by opposing counsel in litigation. Most consultants render formal reports. Academic studies result in lengthy, peer-reviewed publications in journals. There is no confidential relationship between a reviewer and the EPA. There is no statutory law which properly prevents the public disclosure of a written report by the reviewers. These papers must made available to the public and as well as to a Congressional oversight committee.
      4. Competition. A comparison of the laudatory statements by EPA as to the awardees' five projects, using many of the same phrases, such as “supports”, “ready for immediate implementation” allows the inference similar to that of “robo-signing” of foreclosure notices in the current foreclosure scandal. The MASA application is as ready for implementation as any of the awardee's projects. MASA has substantially completed the design criteria of the ships and the shipyard which are now ready for the preliminary drawings and working drawings and specifications, followed immediately thereafter by the sourcing and pricing of equipment and materials. MASA has found a way to cut almost a year off the project by using as the Assembly building, the Air Cell Pneumatic Building or tent on a compacted gravel pad.
      5. Bait. One threat of Asian carp invasion is the purchase by recreational fishermen of small (5.5”) bait which turn out to be Silver or Big Head carp, then when finish fishing, dump the live bait overboard in the Great Lakes or their tributaries. To mitigate this risk, University of Notre Dame will spend $276,150. “About 400 bait shops will be screened over the two year project period and emerging molecular techniques will be demonstrated. Detections will be communicated to managers so that immediate threats can be addressed.”
Just how the communication will reduce the treat is not indicated because it will not. Bait shop managers are unable to identify and remove from the bait inventory 5.5 inch Asian carp juveniles; therefore Asian carp will not likely be removed from the basket of live bait sold anglers. Further, by the time the DNA tests are known and communicated, the bait will have been sold, used and any excess live bait disguarded by the recreational fisherman. If it takes a scientist the use of a DNA test to identify the juvenile carp, how is a bait shop employee/owner or fisherperson supposed to identify the Asian carp? This approach is a waste of money when compared to the depopulation project of MASA and Carp Catchers.
      1. Is public relations the answer to the Asian carp invasion? Apparently the wide-spread news media coverage of the threat of the Asian carp invasion and the spread of other invasive species into and around the Great Lakes is not enough. Paul Smith's College will need to spend $332,869, the University of Minnesota will need to spend $400,000, and the Wisconsin Department of Natural Resources will need to spend $385,307, in order to get the word out that there are invasive species in and around which threatening the Great Lakes. Apart from the fact that this information has already been widely disseminated and continues to be so disseminated at no or little cost to the U. S. Taxpayer, yet EPA seems compelled to garner self-serving public relations of the coming set of environmental disasters, rather than “doing something” about the coming disasters. Accidents are normally preventable, but unless the actor acts in a timely and prudent manner, accidents will happen. The Asian carp invasion is an “accident waiting to happen” as to the Great Lakes Watershed and has already happened in the Mississippi River Basin National Waters. EPA, in dealing with its grant making responsibilities, has turned a blind eye to the threat of invasive Asian carp.
  1. ENVIRONMENTAL JUSTICE DESERVES A CLEAR PATH TO SUCCESSFUL IMPLEMENTATION
    1. Fast start failure versus slower start success. It may be that the MASA approach is not the “fast start” toward the reckless spending of Federal funds proposed by the five awardees. We have known of the huge influx of Asian carp since 1976 and especially from the 1993 and 1997 floods, so waiting a year or so to accelerate the depopulation of Silver and Bighead carp is not unreasonable, given the gigantic scope of the current Asian carp fish stock in the billions of pounds. By denying MASA its funding, valuable time will be lost searching for other R & D funding, which may never come. Given the ineffectiveness of Projects 1 through 5 generally, and their irrelevance to the depopulation of Asian carp, the 1.5 million, hard fought for from Congress, may not be replaced, given the current political climate in Washington. Thus, the only real opportunity to advance the R & D toward harvesting 10,800,000 pounds of Silverfin per year per fleet, is that afforded EPA by the MASA application, as the first, vital step toward harvest operations.
    2. What is environmental justice and how should it be applied?
      1. Defined: “On February 11, 1994, President Bill Clinton issued Executive Order 12898, which required all federal agencies to take steps to overcome any disproportionately adverse environmental effects on the poor and minorities.” Read more: http://www.answers.com/topic/environmental-justice#ixzz1X75flHsY
While this definition has a place in an aspiring Federal presence, it does also generally fit the definition of social justice or social-economic justice. Without taking it out of context of the larger meaning, environmental justice can mean the creation and positive reinforcements of environmental qualities of general benefit to the population and the environment, such as clean air and clean water. Following along with this approach, environmental justice can be administered by EPA in making grants for salutary purposes benefiting the a environment of the Great Lakes and its tributaries, which measures the mitigation of the deleterious effects of invasive species. Some guidance is offered by the National Invasive Species Council's paper: Invasive Species Definition Clarification and Guidance White Paper ; www.invasivespeciesinfo.gov/docs/council/isacdef.pdf “Environmental Harm
      • We use environmental harm to mean biologically significant decreases in native species populations, alterations to plant and animal communities or to ecological processes that native species and other desirable plants and animals and humans depend on for survival. Environmental harm may be a result of direct effects of invasive species, leading to biologically significant decreases in native species populations.
  • Environmental harm also includes significant changes in ecological processes, sometimes across entire regions, which result in conditions that native species and even entire plant and animal communities cannot tolerate.
  • Annual harvests of oysters in Long Island Sound averaged over 680,000 bushels during 1991 through 1996. After Haplosporidium nelsonii (MSX) invaded in 1997 and 1998, oyster harvests decreased from 1997 through 2002 to an average annual harvest of 119,000 bushels with a low of 32,000 bushels in 2002. The overall ex-vessel value of oyster farming dropped 96% in 10 years from $45 million in 1992 to $2 million in 2002 (Sunila et al. 1999).
  • By attempting to manage invasive species, we are affirming our economic and environmental values. Those non-native species judged to cause overall economic or environmental harm or harm to human health may be considered invasive, even if they yield some beneficial effects. Society struggles to determine the appropriate course of action in such cases, but in a democratic society that struggle is essential.” [Emphasis added.]

When applied to the issues in this dispute, the reasonable approach for EPA to have taken, is to have addressed, at the outset, the drafting of an FOA calling for proposals which would mitigate the most persistent, largest, most dangerous threat of environmental harm which the Great Lakes Watershed could suffer if the threat is realized. That threat is unequivocally and demonstrably that of the Asian carp invasion. We have seen the decrease in native fish population in the Mississippi River Basin National Waters. A record number of well-respected government scientific agencies, NPOs and university scientists have concurred in the conclusion that if and when the Asian carp establish a breeding population in the Great Lakes, the native fish population of the Great Lakes will cave-in the same as has happened in the Mississippi River Basin National Waters. The disaster brought about by the explosion of Asian carp has spread across the entire region of the Mississippi River Basin National Waters and is likely to do the same to the Great Lakes and the waters of two countries. The current EPA approach as evidenced by the awards to Projects 1 through 5, while replete with laudatory language about invasive species detection and prevention, totally fail to examine the lack of real impact on the invasive species in quantifiable terms. Further, none of the applications except that of MASA address the massive depopulation of Asian carp which constitute the most serious and immediate threat to the Great Lakes. Thus, EPA has abdicated its responsibility to manage the invasive threat. Instead affirming the economic and ecological value of Asian carp -free waters of the Great Lakes, EPA grant awarding officials has rejected those environmental justice values in choosing Projects 1 through 5 and by putting the MASA application in the sub-basement, the only approach likely to begin the massive depopulation of Asian carp in order to mitigate the threat of their imminent invasion of the Great Lakes. Based on the foregoing, I respectfully request that the awards to Projects 1 through 5 be vacated and that the EPA officials in charge of the above referenced FOA, award a grant of $500,000 to Mutual Aid Society of America, Inc., that EPA grant officials also be direct to conclude a Cooperative Agreement with MASA and fund the grant.

Respectfully submitted, James E. Miller, BA, BS, JD President, Mutual Aid Society of America, Inc.
Cc: Michael Russ: russ.michael@epa.gov; Dave Cowgill, Phone: 312-353-3576; Email: cowgill.david@epa.gov'