Mr. ZENER. If we sort of have a trial period to see how complying with NEPA would be, to see whether it is livable, it is going to take a year or two before we find out.

Mr. MCCLOSKEY. Yes. Within that year we may possibly clean up two or three rivers, by pursuing this course of action, might we not? Mr. ZENER. That is possible, but at the same time if we had the legislation we could clean up much more than just two or three rivers. Mr. MCCLOSKEY. I am not so sure we shouldn't grant you the legislation, but I am wondering if, as a condition of pushing this legislation through, and assuming the vagaries of what the House and Senate might ultimately do, you shouldn't likewise be pursuing every course of action open to you, one of which is to comply with the Kalur decision. We can't guarantee you the ultimate result in the Congress any more than you can guarantee us the ultimate decision in the judicial procedure, can you?

Mr. ZENER. Congressman McCloskey, my best information is that the Kalur appeal should be ready for argument in September or October. In the normal course we expect a decision a month or two after that.

Mr. MCCLOSKEY. I appreciate that.

Mr. ZENER. At that point the question will be cleared up. If we start preparing environmental impact statements now, I doubt they would be ready by the time that decision comes down, so between now and the time the Kalur case is decided, we are not really going to learn anything.

Mr. MCCLOSKEY. Why don't we wait until the Kalur case is completed before we throw a hooker into an act that hopefully is a watershed piece of legislation in this country. If Kalur is going to be effective any sooner, can we?

Mr. ZENER. If we have the authority to issue permits without environmental impact statements, permits could start to issue right away, and the polluters would then know right away what their control requirements were. We wouldn't have to wait until October. Mr. MCCLOSKEY. I yield back. I just want to go back if I may.

In view of the importance of this question might I ask Mr. Chairman, if we get a legal opinion on this point submitted for the record? Mr. DINGELL. I think it would be most helpful if it were given. Mr. Zener, could you give us your considered and mature thoughts on this

matter?

Mr. ZENER. Yes, sir.

(See p. 184.)

Mr. DINGELL. I would suggest also that Mr. Zwick and Mr. Roisman if they wish to give us comments, it would be helpful to the committee. Mr. MCCLOSKEY. I am glad to recieve free legal advice at any time. Mr. ROISMAN. I wonder if I might take just a second to comment on one of the points that Mr. Zener mentioned, which is the language, "to the fullest extent possible".

I think the statement he quotes from the Calvert Cliffs case needs. to be read in the context of the case. As you will remember, the Atomic Energy Commission was attempting to give a narrow reading to the applicability of NEPA-to its activities. There were no emergency procedures being utilized, but rather an attempt to postpone any implementation of NEPA for 14 months.

What the court of appeals in Calvert Cliffs was addressing itself to in that language was to the question of whether or not "to the fullest extent possible" gave you an opportunity to not comply with NEPA, when you had the statutory ability to do so.

Mr. DINGELL. Your point, Mr. Roisman, is the question whether "fullest extent possible" meant no compliance as opposed to a modified type of compliance under the circumstances.

Mr. ROISMAN. That is right. In Calvert Cliffs the court cites with approval the Gillham Dam decision and in that case where we have something more analogous to what we are suggesting here for EPA the court does say, "of course we do not require you to do the impossible". It would appear that what EPA has argued in support of this bill-if it is correct-is that NEPA, read literally, requires the impossible, thus preventing them from cleaning up rivers. That is something they should not be prevented from doing and they can state that and still be in compliance with NEPA. AEC just didn't want to comply

at all for 14 months.

Mr. DINGELL. Philosophically, wouldn't I be correct in assuming that even were the language not in the statute which says "to the fullest extent possible," wouldn't the courts apply a rule of reason in interpreting the statute, never to require a statute to be interpreted either to an impossibility or to an absurdity. Am I correct?

Mr. ROISMAN. Clearly so. Certainly when the impossibility involved would mean the defeating of the whole motive of the National Environmental Policy Act. An agency that comes forward that says we have to do these abbreviated NEPA statements so we can start having environmental protection, in my opinion, is not the context in which a court will use NEPA to say, "We are sorry, the National Environmental Policy Act prevents you from cleaning up rivers.

I knew of the Getty case, of course, and we have had trouble with the third circuit. They handed down Picco case also, and they confirmed a bad decision in a highway case. I don't want to say it is a bad circuit, but we try not to bring our cases there. We hope EPA, to whatever extent it can, will stay out of there also. Relief will come if we get a new administration maybe with different appointments in circuit. In any case the point is I think in the context of the reading of "to the fullest extent possible" that would be applied to EPA's case, I don't see a problem. That is not to say there won't be a lawsuit, and it is not at all clear to us either that EPA would have to prevail, but it is better to have tried and lost, et cetera.

Mr. DINGELL. Mr. Zener.

Mr. ZENER. I was just saying that when we are sued, we don't choose the court to be sued in. Just as Mr. Roisman can choose the District of Columbia circuit, we can be sued from the other side in other circuits. Mr. DINGELL. You had two or three other points you wanted to make. I don't want to preempt Mr. McCloskey.

Mr. MCCLOSKEY. I am all through. I think I understand the problem.

Mr. ZENER. I think what is generally not realized in this area is the tremendous complication of industrial discharges in this country. The permit program has identified 43 different industrial categories to zero in on, the so-called critical industry groups, for purposes of water pollution. You can have several different subgroups in each of those 43.

For example, one of the 43 groups is called paper and allied products. The permit program has identified no less than 15 different production processes within that group that require different treatment for purposes of pollution control.

When you are talking about one particular industry you can have many, many different elements in their discharge. For example, a steel mill will have as many as 23 different elements in their discharge.

Even if you are going to have a foreshortened impact statement, presumably you are going to have to discuss the environmental impact of every one of those 23 elements in the discharge.

Mr. DINGELL. That I don't agree with. Let me make one point here. I think you have to analyze not the state of the existing circumstances but simply what the impact will be of the issuance of the permit. In other words, if you are removing X amount or X percent of the particular pollutant. This does cause me trouble. I find myself in disagreement.

Mr. ZENER. But the Environmental Policy Act says "discuss alternatives," the alternatives of control with alternative technology in particular industries as to what the level of control should be. It says "discuss the environmental impact of your action." What is the environmental impact of, let's say, 10 ounces a day of lead versus maybe 8 ounces a day or a pound and a half depending on what the particular alternative control technology would allow?

You go through this exercise with respect to each one of the 23 or however many elements in the waste effluent.

The Calvert Cliffs case says to balance costs against benefits. What do you consider the cost versus the benefits of alternative levels of control?

Mr. DINGELL. Excepting Calvert Cliffs wasn't decided under the water pollution law which is very different, NEPA sets up very specific considerations with regard to regulatory statutes.

Mr. ZENER. Mr. Chairman, I sure hope you are right that if we have to comply with NEPA we can get away with very much shorter impact statements than AEC has been filing on their nuclear powerplants, which run several hundred pages apiece. But my fear is that if we start doing this, there will be more lawsuits and more litigation and we will be back here a year or 2 years from now again discussing all of these questions and having a very interesting time but not controlling pollution.

Mr. MCCLOSKEY. I quite agree. That is why it is so hard to find you unwilling to at least begin compliance with the law.

Let's assume the Calvert Cliffs case is not pertinent. If you go ahead and adopt some regulations and devote your best efforts to try to get out some permit applications, and let's say you start with the paper industry and some one of those 15 subsections of it, you have the whole talent of the United States to come out with decisions on those 15 different subsections of the paper industry. We are not talking about taking more than 90 days, are we, to come up with those answers as to what is the best available technology?

Mr. ZENER. I think it would take more than 90 days to come out with the impact statement. The CEQ guidelines right now say there has to be a period of 90 days between draft of the statement and final decision. So it is 90 days after coming out with the draft before final permit.

Mr. MCCLOSKEY. Under these circumstances the chairman is asking about, faced with the realities of the situation, you are going to have to adopt some new regulations under the court decision. Couldn't those regulations specify, within a rule of reason, a much more rapid attack on these problems? Who is hurt in the long run if your initial criteria turns out to be replaced? This whole field of environment is involving new technology coming before us every 30 days.

Mr. ZENER. Nobody would be hurt, Congressman. It is simply a question of delay involved and the fact that the pollution is occurring while we are going through this performance.

Mr. MCCLOSKEY. That is my point. One thing I don't understand about your testimony is, if trying to overcome delay is the purpose of this bill, why not during the pendency of the litigation proceed with every possible action we can to end delay? Isn't that essentially what Mr. Roisman and Mr. Zwick are suggesting?

Mr. ZENER. I will look into that but I think that the answer will be that it is sort of an experimental program now to get out a permit with an environmental impact statement that is going to get only a very few.

Mr. MCCLOSKEY. If the Congress should fail to enact this into law you have then taken one alternative to try to end the delay when you have perhaps two or three available to you. Isn't that correct? Mr. ZENER. Yes, sir.

Mr. MCCLOSKEY. I suppose if delay is what we are trying to overcome, my question is why not proceed on all three fronts to try to get at this question. That is a policy decision, of course.

Mr. ZENER. Yes.

Mr. MCCLOSKEY. For your higher echelon to make, I presume. Thank you. Your testimony is very helpful to us. I think we ought to pursue these other alternatives.

Mr. ZENER. I understand your point.

Mr. ROISMAN. I wonder if I might just clarify one point.

Mr. DINGELL. So long as we all have an understanding that Mr. Zener may have a couple of more points.

Mr. ZENER. Mr. Chairman, I am through.

Mr. ROISMAN. It goes to what Mr. Zener was just saying as he went through the complications inherent in making a judgment about what you did with a particular point source of pollution and how you go about controlling it and what you have to look at. It goes back to what I said at the outset. Environmentalists do not believe NEPA is a statute that guarantees that in every situation you just keep piling on pollution controls.

We know in industry, even ones that are trying to comply with the environmental protection policies in principle, they are dealing with a limited amount of funds, and the consumers pay the cost of environmental protection. We don't want to see industry using environmental quality control devices which they don't need.

I am sure Mr. Zener didn't mean this but it sounded almost as though he said "If I had to give a reason for employing best available technology in any given case, I wouldn't have any reason for it, I wouldn't be able to explain why it made any sense."

I don't think he means that. NEPA doesn't require him to do more than to be able to justify what it is they are doing.

If this bill were passed, then EPA would still have to justify the permits that they issue and give a sufficiently detailed rational for that permit so that a reviewing court would be able to understand what they did.

EPA has had experience with this not a very pleasant one-not to environmentalists either, I might say. They have taken action with regard to DDT. I can't tell you how many times they have been in court. The last time was May 5, 1972. But there have been four or five cases in the U.S. court of appeals, and the burden of each case has been that EPA, or in the first instance the Department of Agriculture, did not give enough of an explanation for why they were refusing to ban all DDT use so that a court can understand and make an adequate review. They weren't applying NEPA in that case, they were applying the Administration Procedure Act, the principle that that court requires an agency to give a rational basis for their decision. If EPA has a rational basis for requiring the paper pulp industry to use a kind of control device in one of 15 pollutant sources that rational basis is going to apply under NEPA or under the Administrative Procedure Act. If they dont have any rational basis for it, I don't think they ought to impose it.

Mr. DINGELL. You raise two very important points, the first of which is that they are going to prescribe particular removal levels in the permits. I don't think that is all that is going to be required under the water pollution law. Am I correct on that?

Mr. ZENER. That is right: the permit would prescribe particular levels that have to be met.

Mr. DINGELL. As opposed to particular mechanisms to achieve the levels.

Mr. ZENER. But the level would be set with knowledge that particular devices are available to meet them.

Mr. DINGELL. That is the first point.

The second point and I think it is a very valid point you are raising, is that again comes down to an equation between the requirements of the Administrative Procedure Act on the right side and the requirements of NEPA on the left. I am curious to know, are you saying those two in certain instances could be practically the same or could be exactly the same or would be the same in most instances? Certainly in case of emergency permits they would probably be identical. Am I correct?

Mr. ROISMAN. I think so. We are holding aside the substantive part of NEPA which is, of course, different than the Administrative Procedure Act. Look at cases like the Scenic Hudson case decided in 1965 and not under NEPA, but decided under general administrative law and the substantive requirement of the Federal Power Commission. There you had a situation in which the court was saying that an agency had certain obligations with regard to how it goes about the process of reaching a decision. NEPA was a more explicit exposition of what was generally administrative common law.

As you know in this committee, I think you could more easily comply with NEPA than you could with the various standards of the Administrative Procedure Act on this question. You have some pretty good guidance.

Mr. DINGELL. It gives you a check on what we have done.

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