Mr. ROGERS. You have started but you haven't stopped it. I commend you for that. I think you have done more than anyone else. I do commend you for that. You have started a program going. What I am saying is that where we know a dangerous setup, people should be advised that that definitely is going to be viewed as a criminal act. I would hope that you would consider issuing such a statement.

Mr. KASHIWA. Now I have to make this clear. We have some of these companies coming down to a very small speck per million gallons. The discharge is just a small speck, so many tenths of a gram per million gallons.

Mr. ROGERS. Why shouldn't they stop it?

Mr. KASHIWA. In the process of cleaning up, many of the plants have the problem of eliminating a long-existing flowage. It is not yet completely clean, but in many areas where they were dumping 30 pounds per day we have put them way down to 0.25 pounds. When we think about the millions of gallons of water that they use, there is a dilution problem in establishing pollution, and there are all kinds of problems, but under the civil injunctive system, for the record I will proudly state that I have caused some of these companies to spend a million and more dollars to stop pollution, not just collecting the $2,500 criminal fine, but getting clean-up through an injunctive proceeding. Some of the officials who have come into my office have spent a million dollars renovating their plants. They can see that by a certain period the discharge of mercury into the water will be practically nil. That has been accomplished.

Mr. ROGERS. In 10 cases; was it?

Mr. KASHIWA. That is right.

Mr. ROGERS. Have you seen the Food and Drug Administration's listing of the polluting areas from mercury, the number of States where they have had to close off entire rivers, have had to prevent fish products from going to the market, no telling how many hundreds of thousands in each State, perhaps millions. Also the health that can be affected. You can go down this, analyze one, there is Georgia, Michigan, Louisiana, Mississippi, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, West Virginia, Wisconsin, California.

Mr. KASHIWA. This is what happened. Ten cases were referred to us by Interior.

Mr. ROGERS. I understand. You did a good job on 10 cases.

Mr. KASHIWA. But Interior promised us at the same time that they will get after the others to cut mercury pollution down to the minimum. Mr. ROGERS. Here is what I am saying. A strong statement issued by the Department will have the effect of stopping mercury more than waiting for all of these little cases to come around. Now you started to set examples by the fine work you have done in these cases. That is helpful. Why don't you follow it up with a strong statement saying we want it to stop. You have already taken that position. Issue a strong statement that you will view this as a criminal action. I hope you will consider this and let the committee know.

Mr. KASHIWA. We do want it to stop, I can tell you now. And I am prepared to add that in appropriate cases the Department of Justice will not hesitate to seek criminal indictments under the Refuse Act for the deposit of any toxic substances in navigabble waters. The En

vironmental Protection Agency at this time is engaged in studies to determine permissible amounts, if any, of various such substances. I do not have the factual or technical information now to tell you in what circumstances we may seek indictments in the future.

Mr. ROGERS. Mr. McCloskey.

Mr. MCCLOSKEY. I would like to reiterate for Mr. Kashiwa's sake, if you will, that the campus unrest situation has been a concern to the Congress. All of us who have had to go out and debate on campuses have been confronted by individuals who say that the U.S. Government is anxious to prosecute anybody who throws a rock or starts a riot but the U.S. Government is unwilling to prosecute criminally those who commit crime every day by polluting the waters of the United States. The whole system of our Government, validity of our laws, and respect of the people for the law, is that the law will be enforced against the rich and big just as much as against the poor and small. If the Department of Justice will tell us today that you are limiting your actions to civil actions against these large corporations and you are stipulating to a certain amount of permissible crime to be committed every day, that gives a certain credibility to these radicals out on the college campuses who are saying our Government will not punish criminally people who have built plants and use their plants to commit a crime every day. This is the thing that distresses me about your testimony today because the whole thrust of this testimony is that you have made a decision not to criminally prosecute, and have not criminally prosecuted, those who daily commit a crime. When you see that stipulation prepared by your office in September 1970 to permit mercury in given amounts to be discharged into the navigable waters it seems to me that you fuel the fires of campus unrest by the actions of your Department. I say that most sincerely and with the utmost respect for the job you are doing. The thrust of your guidelines and testimony is to discourage criminal prosecutions.

Mr. KASHIWA. I have been out in the field, too. We have a Department of Justice team that visits college campuses, and I have been out to the University of Denver. I have endeavored to explain the environmental problem, and when I explain what these guidelines mean, the students are satisfied.

Mr. MCCLOSKEY. That there should be no criminal prosecution against corporate officers?

Mr. KASHIWA. I am not saying that, because we do undertake prosecutions; for example, in California we have prosecuted United States Steel. There is no question about that.

Mr. MCCLOSKEY. You know and I know that in the past under the antitrust laws if corporate officers knowingly permit their corporation to do something that constitutes a crime, they are guilty of a crime, guilty like anybody else who aids and abets the commission of a crime.

Today you have told me that there has been no criminal charge against an individual.

Mr. KASHIWA. The criminal division handled one such case in the United States Steel case, but there was insufficient evidence. That case against the individual was not finished.

Miss SCOTT. That is not being dismissed. There was another individual in another case in Chicago. The information was dismissed as

to the individual because when the evidence was examined they could not put the responsibility on the individual. He was not a corporate officer. He was supposedly the foreman who was in charge. It turned out that he was not in charge the day on which we had evidence that pollution occurred, so they had to dismiss it.

Mr. MCCLOSKEY. That matter of pinning responsibility is a matter of putting out information by the law enforcement agencies as to what constitutes a crime. This is what Mr. Rogers is directing his statement to. I understand. The past year is really the first time after 70 years of the existence of the 1899 Refuse Act where we have started to consider prosecuting people criminally for something which has been a crime for 70 years but we have never prosecuted.

I think the citizens of the country are entitled to clear notice that they are going to be prosecuted criminally for doing what is clearly a crime under the law. I do feel that under section 103 which requires your agency to reexamine your procedures and your guidelines you should reexamine with respect to whether the country is on fair notice that this crime exists and will be prosecuted.

What I intend to do is alert the high school students in my own. district, tell them how to collect the evidence under the Federal Water Quality Administration's standards and present that evidence to the U.S. attorney. We will test how good the procedures are as that evidence is turned in, whether it meets the test of convincing proof under the law, and allows speedy prosecution. That is the way to do it. Let the citizens of the country know there has been a crime.

Mr. KIECHEL. We cannot bring cases without the facts.

Mr. MCCLOSKEY. The preparation of this evidence is simple. It is a milk bottle properly labeled. Most of the high school biological classes can do the tests that are necessary to show whether it is a substance that constitutes pollution.

I think this hearing has been helpful. I hope you understand the gravity of this committee's, and certainly the Government Operations Committee's, feelings that without effective prosecution, which is your responsibility, we cannot comply with the National Environmental Policy Act.

Thank you.

Mr. KASHIWA. Thank you very much, Mr. Congressman.

Mr. DINGELL. How do you interpret your duties under the National Environmental Policy Act, being less than vigorous and aggressive in the prosecution of criminal violations of the 1899 act?

Mr. KASHIWA. It takes a little time to develop this type of prosecution. Since I came to office there has been a gradual increase we can draw a graph and it shows a gradual rise.

Mr. DINGELL. I do not challenge that fundamental point. Let me try to make this question very simple: Doesn't the Environmental Policy Act require you to engage in a vigorous program of prosecu tion of violators of section 407 of the 1899 act?

Mr. KASHIWA. It does; and I will to the best of my ability..

Mr. DINGELL. Doesn't 103 require you to find where you have deficiencies in your administration, your programs, your regulations, your statutory authority, your budget, the number of people that you have available to you, to come forward with a 103 statement setting out the deficiencies and problems you have and giving a statement

as to what changes in your regulatory authority, your budgetary structure, your legislative authority, your administrative procedures, and so forth, are necessary to enable you to bring your performance in full conformity with that goal?

Mr. KASHIWA. Mr. Chairman, with the formation of the EPA, I think you helped a great deal on that. I think with the centralization we will be able to proceed much more efficiently-this is one of the problems we had.

Mr. DINGELL. Don't you have a duty of providing this committee, the President, and the Congress with your 103 statement, to make a very careful analysis of your internal problems and present to us any deficiencies you have in carrying out that program of vigorous prosecution?

Mr. KASHIWA. We will file

any necessary statement. Mr. DINGELL. I would hope so. The deadline, let me say, according to the Council's directions to you, is now past. It would be my hope that you would review that, and if you have not filed a proper 103 that you will proceed forthwith to do so with regard to implementation of the law.

Now I think this is very clear. If you, as you indicated, have less than the number of people required either to investigate or to criminally prosecute, then you should so indicate to the White House and the Congress. We expect you to enforce the law fully and fairly. I yield to my counsel, Mr. Everett.

Mr. EVERETT. Thank you, Mr. Chairman.

Mr. Kashiwa, on the bottom of page 1 you state:

The limited administrative functions which it does have relate to the property interests of the Department, mainly surveying properties operated by the Bureau of Prisons and the Immigration and Naturalization Service.

Is it your interpretation that the 103 statement is not required to be filed in regard to these administrative duties of your Department? Mr. KASHIWA. Mr. Lazowska.

Mr. LAZOWSKA. We have filed such a statement with respect to the administrative duties. We have construed that we should and we have, indeed.

Mr. EVERETT. I was wondering if you could make it available to the committee.

Mr. LAZOWSKA. We have made it available as an enclosure to Mr. Kashiwa's formal statement. It is a short statement. You were given the substance of it in a letter earlier. Now we have given you the actual

statement.

Mr. EVERETT. Is that dated December 7, from Mr. William O'Donoghue?

Mr. LAZOWSKA. That is correct.

Mr. EVERETT. That relates to the 103 statement, I believe. I was discussing 102 (2) (C).

Mr. LAZOWSKA. We have not had occasion to file such a statement. We have interpreted the act as not applying to our activities to this

time.

Mr. DINGELL. I am curious to know on what basis you folks in the Department of Justice interpret section 102 (2) (C) as being inapplicable to your activities.

Mr. KASHIWA. With relation to these properties?

Mr. DINGELL. Yes, sir.

Mr. KASHIWA. With relation to these properties, for example, if we are going to build a new immigration station, we certainly will file a proper statement. It would apply to such action. But we have not, up to the present time, built a new immigration station or anything of that nature. So we have had no occasion to file with relation to these properties.

Mr. DINGELL. With regard to your guidelines, under the Refuse Act can you explain to us why you view that particular activity as being not subject to the requirements of the 102(2)(C) statement, please?

Mr. KASHIWA. Yes. Mr. Green will explain that.

Mr. DINGELL. He said he didn't view it as being under that. I am rather curious as to why. I am curious to know on what authority you arrive at that judgment.

Mr. GREEN. First of all, Mr. Chairman, because it has no impact on the environment as such.

Mr. DINGELL. It doesn't?

Mr. GREEN. No.

Mr. DINGELL. Now let us say that you have arrived at a decision, as you have, that you are going to exclude criminal prosecution of a certain number of polluters under the Refuse Act of 1899. Are you telling me that that doesn't have an environmental impact?

Mr. GREEN. Sir, we have not arrived at a conclusion, as you stated. So far as I know, we have never failed to prosecute criminally-and the Criminal Division did not.

Mr. DINGELL. Let us read these things. I may read these different, and I may have an old copy:

To this end, the instructions in section 3 below encourage United States Attorneys to use the Refuse Act to publish or prevent significant discharges, which are either accidental or infrequent, but which are not of a continuing nature resulting from the ordinary operations of a manufacturing plant. Discharges of this last type, of course, pose the greatest threat to the environment.

So you have told the U.S. attorneys that with regard to the very kind of discharge which has the greatest effect on the environment, they are not to use this and to initiate criminal prosecutions without advance clearance from the Department of Justice, and you are setting it out as an official policy statement of the Department of Justice. I read that as a statement by whoever wrote these guidelines, and I don't know who it was, that stated that this had tremendous environmental impact. In fact, you say here:

Discharges of this last type, of course, pose the greatest threat to the environment.

Mr. GREEN. To the extent that those guidelines required the U.S. attorney to get approval from Washington to initiate a case they were merely a perpetuation of the existing condition and established no new policy.

Mr. DINGELL. Do you gentlemen say that even where you have a preexisting matter or an ongoing program that you are not required to issue impact statements?

By the way, are you going to tell me there is absolutely nothing new in these guidelines you have put forth?