assuming they did come up, where someone would attempt to stop EPA from improving the quality of an ongoing project. The logic of what relief the court would grant in those cases is entirely different. In the one case of the Gillham, for instance, the Corps of Engineers was proceeding with construction of the last phases of the dam and the alteration of the river and was going to do so without ever examining the impact. The court said: Stop until you have prepared enough of a statement so we can understand what in the world you are about to do, and if you can't tell us what the impact is going to be, please state that in the impact statement so we will understand that. As the Chair may know, the Gillham Dam case has finally gone to the last opinion before the judge and the judge has upheld the validity of the Corps of Engineers impact statement, that it met the statutory requirement. But that is a different situation than the situation which you will face if United States Steel is polluting a river and the Corps. comes in and says "Here's a permit and here's an impact statement that goes with the permit." And this permit says "By a dates you have to do the best available practicable technology." Now we will assume United States Steel comes in and says "We want an injunction." Now the injunction is an injunction so that we can continue polluting rather than an injunction so that pollution will be stopped. I submit that both the logic of NEPA and the logic of the permit program would suggest that that type of a temporary restraining order is not going to be issued. If it is issued, then that is time enough for EPA to come back and ask special relief. I don't see why we should have to speculate about what the courts would do with a program EPA could have implemented in December of 1971 and can still implement in June of 1972. Mr. DINGELL. I have tried very hard not to interrupt your very fine statement but you have been making comments with regard to a polluter suit against enforcement of a permit or issuance of a permit by reason of the NEPA statement requirement being somewhat foreshortened. Wouldn't that kind of suit also be rather prohibited in light of policy statements in NEPA and also language in section 102? Mr. ROISMAN. You mean the policy statement that would prevent the suit, you mean prevent it being successful? Mr. DINGELL. Yes, prevent it being successful. Mr. ROISMAN. I was going to get to that. I think as a matter of fact that is the next point I have here. I gather that it is EPA's intent that these permits, if and when they begin issuing them, will apply the standard "best practicable technology." That standard is in effect what is written into the water program now. It seems to me that that standard is more easily justified assuming that EPA doesn't really have the fish kill figures or the pollution effect figures and so forth-is more easily justified if they have available to them the broad policy on environmental protection contained in sections 101 and 102 of NEPA that if they had to rely upon the somewhat bareboned language in the 1889 Federal Refuse Act, and they may be, by throwing away section 102 of NEPA and the requirements that are contained in there, they may be throwing away important policy factors which can assist them, give them the logic for their decision because I think as I said before NEPA is not only the administrative procedure act of the environmental movement but it is also substantive, and that substance says that when in doubt resolve the doubts in favor of environmental protection. Actually that is what this permit program is that EPA wants to implement. What they are telling us is that we don't know for sure that all of this pollution is having a horrible impact on the environment. But years of experience with pollution in the water has shown. us that most of the time what we think is not a harmful effluent turns out to be a harmful one later at some future date. Mercury, cadium, lead, all of these at one time were thought to be totally irrelevant, don't worry about them, and after research and years of study we found they were a problem. That history of what water pollution has done is certainly enormous support for the proposal that best practicable technology should be applied if you are operating under a law that says presumptions are resolved in favor of protection of the environment, because that is what you are in effect doing. You are saying to the industries, "If you can't prove to us that your pollutant won't hurt the environment, we will have to assume it will and prohibit it, namely, require you to use best available technology." I think your point, Mr. Chairman, is extremely pertinent and suggests further reasons why people ought to try to work under NEPA and take advantage of what is in NEPA rather than attempt to work without it. I thought also that point that was made about EPA immediately deciding which are the major and which are the nonmajor Federal actions was a good point, that we shouldn't keep talking about 20,000 permits because many of them are not major Federal actions. It is certainly clear that at least 5,000 are not major Federal actions and let's get moving on those 5,000, draw up those permits and get them issued out. Again, that is something that could be done from Kalur. This is a point alluded to today and contained in the letter to Senator Baker. There is a reference to the possibility that EPA because of the balancing obligation somehow or another might require an erosion of the stringent requirement that Congress has applied with regard to water quality. That is when you look at the impact and you try to balance impact against costs and so forth, you might come to the conclusion that best practicable technology was not what should be applied, but rather to something less than that. Here, again, the language of NEPA I think makes that rather clear, and as of course was done in the Calvert Cliffs case. Section 104 of NEPA says specifically-I am reading the U.S. Code. "Nothing in section 4332 or 4333 of this title shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality." I think that that language and the legislative history support the reading of that to mean that whatever Congress passes as a standard, such as an air standard or water standard, becomes a minimum require ment. The Calvert Cliffs case confirms that it is a minimum requirement that the agency must meet. So that if best practicable technology becomes the law of the land because it is implemented under the water bill, even then the preparation of impact statement will not in any way permit erosion of that. It may permit improving upon that. And that is the clear holding of the Calvert Cliffs decision. Finally, I think it is well to at least address for one second the question-if this committee is persuaded that it must proceed with the bill-is this the right bill? And I think—and Mr. Zwick will address this in more detail, but I have had an opportunity to look at what he is suggesting. I think this bill does need to be amended in two important respects. First of all, if the purpose of the bill is to permit EPA time to do full impact statements, then the bill should not allow permits to be issued for periods any longer than the period that it takes to do the impact statement or 1977, whichever is earlier. You may know, if you have taken a look at the bill which was passed by the Joint Committee on Atomic Energy and eventually by the Congress, H.R. 14655, that they wrote in language in the bill that said it will be taken badly against the industry, in effect they will lose their operating license, if they do not proceed expeditiously with the preparation of the impact statement. So you could put into this bill a provision that the permit would last only as long as it took EPA to do the impact statement or 1977 whichever is shorter and they are required by Congress to proceed immediately. Second, it seems to me, and this is a problem many of us have tussled with, EPA in private conversations with environmental organizations have assured us they want to implement a permit program that will impose best practicable technology. Congressman McCloskey asked a pertinent question, that is, who really runs EPA: EPA or OMB. I think unfortunately it is not only EPA. We had considered the possibilities of trying to get presidential commitments that if the bill were passed there would be a best practicable technology standard utilized. The difficulty with that was enormous. An alternative that Mr. Zwick suggested, and I think again it is an excellent one, if you must pass a bill, you write into this bill the standards "best practicable technology" and therefore assure that there will be that as a minimum standard for the issuance of permits. That would guarantee at least that EPA will perform in that respect. I talked to Mr. Zwick, but we really didn't talk it out very much, that you might also consider the possibility of adding in a requirement that EPA must by 1975 issue these 20,000 permits. But I was concerned about what would happen in OMB in that situation. In conclusion, when I was here and we discussed H.R. 13752, I and Mr. Cherry suggested to this committee that the real problem that the agency was faced with, the Atomic Energy Commission, was an internal procedural one, and problems with their own administrative responsibilities and with hearing procedures. I am happy to report that that position was eventually adopted first by the Joint Commit tee on Atomic Energy when it reported out H.R. 14655, then by the Congress when it passed the bill and the President when he signed it, and finally by the Atomic Energy Commission, which only a short few weeks ago implemented, on very short notice I might say, provisions for the issuance of temporary operating licenses to nuclear power plants and expedited hearing procedures without amending NEPA. The net effect was that the AEC found a solution to its problem without having to amend NEPA. I think history will prove that EPA, too, can do it. I still wonder how we can get EPA to try, and there are a number of thoughts floating around to do that. I think this committee might help them try, and I can't even say try again. We haven't reached that point. Just try once. They will like NEPA once they have had a chance to use it, if they just use it. I am finished. Thank you. I am glad to answer any questions. Mr. DINGELL. It is always a pleasure and privilege to have you before the committee. I admire and respect your ability. I am sure you are aware of this. I think you have done a very fine public service. Mr. ROISMAN. Thank you. It is a great pleasure to appear before this committee. I hope we can start appearing in support of some of your legislative proposals which in the past have always been excellent, and say "Save NEPA" can be dissolved. This is not to be a continuing organization we hope. Mr. DINGELL. Let me tell you if the factors affecting NEPA reside solely in the chair, I would dissolve it tomorrow. I have many attacks on EPA of much more serious character coming from other quarters. (The following letter was supplied for inclusion in the printed record :) Congressman JOHN D. DINGELL, SAVE NEPA. Washington, D.C., July 24, 1972. DEAR CONGRESSMAN DINGELL: At a meeting with Frank Potter and Dave Zwick, we discussed the possibility of drafting a new version of H.R. 14103 which would provide EPA with a limited exemption from NEPA and at the same time strengthen NEPA. I have spent several days reading the statute and the key court decisions. I have reached the conclusion that I cannot in good conscience suggest amendments to NEPA because I honestly do not believe there is a need for any amendments. We discussed an amendment which would, in effect, require a federal agency or a court to reach decisions which favored environmental protection, for instance, prevent the issuance of injunctions against agency actions which enhance the environment. However, it is clear that NEPA creates a presumption for environmental protection. In Section 102(1) Congress directs all federal agencies to interpret and administer their policies, regulations and public laws in accordance with the policies of NEPA. The Congressional purpose and the policy of NEPA is succinctly stated in 42 U.S.C. § 4321: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. The leading and best reasoned NEPA cases have reached a similar conclusion. In the Calvert Cliffs case, the Court said: 82-302-72--14 [NEPA] takes the major step of requiring all federal agencies to consider values of environmental preservation in their spheres of activity and it prescribes certain procedural measures to ensure that these values are in fact fully respected. The procedural requirements of Section 102 are not meaningless procedures but means to an end-the end being protection of the environment. As a result of several successful court cases in which environmental organizations have used the failure to comply with the Section 102 procedures as a basis to stop federal action which would adversely affect the environment, a number of federal agencies have assumed that minor procedural irregularities in their compliance with Section 102 will be utilized to enjoin federal actions which will enhance the environment. This is a total perversion of the logic of the leading and best reasoned cases and of the logic and legislative purposes of NEPA. The procedures of NEPA were designed to ensure that the agency included environmental protection in its decision-making processes. The procedures of Section 102 would obviously be less rigidly applied in a case where that had been done, and the result was greater protection for the environment. Thus the requirements of Section 102 have to be interpreted in light of the purposes of NEPA. A discrepancy in the Section 102 procedures will not be fatal to a federal action where the main and overriding purpose of NEPA—environmental protection-has been served. Some may argue that this line of reasoning makes NEPA a biased statute that does no treat all aggrieved persons equally. In fact, that is correct. NEPA, as its legislative history demonstrates, was designed to correct years of imbalance in federal decision-making. It requires affirmative action to overcome the past environmental neglect. Where the measure of environmental protection required is not achieved the Courts naturally turn to procedural infirmities in the agency action to use as a basis for a remand. However, if the level of environmental protection is adequate as evidence, for instance, by environmental acquiescence in the decision, then any Section 102 mistake becomes nothing more than harmless error which does not warrant a reversal. In a recent decision a District Court held that where redoing the impact statement was not likely to alter the result, the action in question would no be enjoined while the agency was redoing the impact statement. All of this has reinforced my conviction that EPA, if it intends to pursue a water permit program based upon a properly interpreted "best available technology" standard, can do so without fear of court reversal and without having to produce massive impact statements. The regulations to implement this program need to be carefully drawn but need not take more than two weeks. When the AEC was under pressure to implement a completely new set of procedures for the issuance of temporary operating licenses it was able to do so in a few weeks. What EPA needs is someone to begin to crack the whip before they are smothered in their internal bureaucratic procedures. Development of a viable water permit program has been neglected for more than two years since the resurrection of the Federal Refuse Act. Much of the delay has been administrative and within EPA. If clean water were a high priority item, the red tape would have been cut and the permits would have been issued. That can still be done. Thus the Congress still has two viable alternatives with respect to water permits. It can grant EPA's request for exemption from NEPA or it can make it unmistakably clear that until EPA has tried to comply with NEPA and failed, there will be no consideration of exemption. The reasoning of your Committee in approving H.R. 13752 requires that you now adopt the second alternative. The efficiency and skill with which EPA implements a program to comply with NEPA and issue both long-term and short-term permits will be a measure of their true commitment to the water quality program. Finally, I have found in reviewing NEPA and the leading cases that it is a beautifully worded statute which embodeis all of the enviromental hopes and directives of a truly committed Congress. The Courts too have caught this mod and, as a result, their decisions have provided important precedents for environmental improvement. If NEPA is now amended all of those decisions will, to some extent, be superseded by the new laws. Whether the amendment is one like H.R. 14103, which is premisesd upon the erroneous assumption of the inflexibility of NEPA, or whether it is a more invidious amendment, the very |