to have to write in exceptions, and it is the exceptions which I think, as you properly identify, cause the troubles. Mr. ROGERS. And to know them ahead of time so something can be done to prevent them. Excuse me. I didn't mean to interrupt. Mr. TRAIN. It seems to me it is the exceptions which cause the problems here. I think I personally would rather not start carving out exceptions and simply require that all agencies are subject to the National Environmental Policy Act. Now, this is a matter of enforcement, as I pointed out, by Executive action, by judicial action, and by congressional action, and I think that it is quite true that there is always somebody who does not get the word, and in talking with a very large Military Establishment, I think it is very unfortunate it does happen. Mr. ROGERS. But you know if there is any establishment in Government where they should get the word quickly it ought to be in the military. If they can't, we are really in bad shape. You know, if they can't get the word down-and this appears to be so and I realize it is a large establishment-we are in bad shape, but I would think this would have enough impact on commanders and there are not too many bases that they can't get the word to stop dumping in the ocean. I shouldn't think it would take too long to get it through, and maybe the Secretary has now. I hope so. Mr. TRAIN. I share your sense of outrage about it. Mr. ROGERS. I know you do, and that is why I am asking for comment as to what we can do. You might want to give us a memo on this business of whether we should get into some refining of national security. I think it would be helpful to have your thinking on it, the Council's thought, because I believe we are going to have to do something to tie down what is a factor of national security. Mr. DINGELL. Would the gentleman yield for a question on this point? Mr. ROGERS Yes. Mr. DINGELL. As I understand the National Environmental Policy Act, it says all actions which affect the environment must be reported under 102 (2) (C). I think this brings us to a question of alternatives as to whether or not we are going to require that to mean all, and then to suppress the reports where they do have a question of national security or something of this sort, or whether we are going to exempt those agencies which involve national security or land prices, or something of this kind, or require perhaps an adjustment in terms of the timing of filing. Perhaps you might want to give us, if you could, Mr. Train, your views as to which is the better way and whether or not there is some administrative or legislative change that ought to be made to bring this problem into a better resoluion. Mr. TRAIN. I would be happy to do that. Mr. ROGERS. And I would think, too, you would want to consider, Mr. Chairman, the fact that we may want a statement on every impact that could be made by any action, but we are talking about a release of the information, before it takes effect, to the public, before the final impact statement is made, so the public will know what it is going to be. There I think we may have to differentiate, is it time of release of information, as to how much should be placed. Mr. TRAIN. The question really doesn't come up unless you decide you want to have a release in advance of the final action. Mr. ROGERS. Yes; but this would be so all over, as a matter of fact. Mr. DINGELL. If the gentleman would just yield Mr. ROGERS. Certainly. Mr. DINGELL. It occurs to me that you might want to submit your comments on this in an appropriate memorandum rather than being compelled to respond at this particular time, so as to give you more opportunity to reflect on the precise answer you want to give. Mr. TRAIN. I appreciate that. This is a matter that we want to be discussing with the various agencies during these administrative hearings that we will be having over the next few weeks. There may be other cases like the land escalation problem, for example, that we should know about. I think there is a national park acquisition problem in this same connection. So that we would like the benefit of our hearings and the hearings you will be having in the preparation of that particular memorandum. (The memorandum follows:) AVAILABILITY OF ENVIRONMENTal Statements AND COMMENTS TO THE PUBLIC After conducting hearings with a number of Federal agencies into the implementation of Section 102(2)(C) of the National Environmental Policy Act, and after considering Congressional and public comment on the timing of release to the public of environmental statements, we propose to issue the following provision as Section 12 of the Council's Revision of Guidelines on Statements on Proposed Federal Actions Affecting the Environment: (new material is underlined) "Section 12-Availability of environmental statements and comments to the public (a) In accord with the policy of the National Environmental Policy Act and Executive Order 11514 agencies have a responsibility to develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. (b) The agency which prepared the environmental statement is responsible for making such statement and the comments received available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. sec. 552) without regard to the exclusion of interagency memoranda therefrom. With respect to recommendations or reports on proposals for legislation, the environmental statement and comments should be available to the public at the same time they are furnished to the Congress. With respect to administrative actions, except where advance public disclosure will result in significantly increased costs of procurement to the government, the draft environmental statement should be made available to the public at the same time it is circulated for comment and furnished to the Council, and the final text of the statement and comments received should be made available to the public when furnished to the Council. Agencies which hold hearings on proposed administrative actions or legislation should make the draft environmental statement available to the public fifteen (15) days prior to the time of the relevant hearings. Agencies shall institute appropriate procedures to implement these requirements for public availability of environmental statements and comments thereon. These shall include arrangements for availability of the draft and final texts of environmental statements and comments at the head and appropriate regional offices of the responsible agency and at appropriate State, regional and metropolitan clearing houses. The proposed new provision contemplates that interagency memoranda commenting upon environmental statements are to be made available to the public even though the Freedom of Information Act provides that interagency memoranda may be withheld from public disclosure. As you know, the Freedom of Information Act also provides an exception for classified information affecting the national security. We have not attempted to circumscribe that exception beyond what the Act now provides. No case has come 55-360 0-71-pt. 1-3 to our attention where the exception for classified information was asserted in a manner which frustrated public disclosure of an environmental statement. Advance public disclosure would not be required where it would result in significantly increased costs of procurement to the government. This provision is intended to allow for the purchase of property, for example, for parks and similar purposes without prior notice where notice would cause speculation and result in a significantly higher cost to the government. RUSSELL E. TRAIN, Chairman, Council on Environmental Quality. Mr. ROGERS. Let me just ask one or two questions. I have taken an awful lot of time and I apologize. Has there been an environmental impact statement on the SST! Mr. ROGERS. When could that be expected? Mr. TRAIN. We have a draft statement on file with the Council. Now, the release of a final detailed statement is, of course, up to the originating agency. It is hard for me to prejudge just when that would be. We have called for one simply by way of letter reminding the agency that a final detailed statement had not been made and that we felt that the time was appropriate when it should be made available. Mr. ROGERS. This concerns me because now we are going to have to vote on an issue here, a very critical issue, that we ought to have advice on. Is there any way to have this publicized before the vote comes up on this sort of deal? Mr. TRAIN. Well, the Council, as I indicated earlier, has no authority to compel an agency action, and the statute itself speaks of a final detailed statement and only that statement is available to the public under the Freedom of Information Act. Mr. ROGERS. Yes. Should you have authority to release statements when you think they are timely? Mr. TRAIN. As Mr. Atkeson points out to me, in this particular case the draft at least has been made public for some time. Mr. ROGERS. Was it adverse or favorable? Mr. TRAIN. I don't know how you could characterize it. It was prepared by the Department of Transportation. Mr. ROGERS. I think that probably characterizes it for me. Have we had the input of the other Federal agencies? Mr. TRAIN. I believe you would call it favorable, Mr. Rogers. Mr. ROGERS. I would anticipate that that would have been true. Does the Council comment on those at all, or just try to send it back if you think it is not proper? I am not going to get you to say whether you are for SST or not. I am not getting to that. All I want is the procedure. I understand the position of the administration. Mr. TRAIN. Our practice is to review all section 102 statements submitted to us to the extent that this is practicable in staff terms. Any matter of high priority, real significance, of course we make every effort to review, and of course we have reviewed the draft statement on the SST and we have commented orally to the originating office in the Department of Transportation on the draft statement. Mr. ROGERS. Are you at liberty to tell us what that comment is, or not? I will not press you. Mr. TRAIN. That has not been our practice, Mr. Rogers, on this or any other 102 statement. Mr. ROGERS. I won't press that point. I would hope that the final statement could be made available before the House has to vote on this matter tomorrow. Let me just ask this. What about mercury? Some of us have been trying to get mercury prohibited from being dumped. We know what its effects are. I don't see enough action here. Is there anything the Council can do on this? Mr. TRAIN. It was my understanding that the amount of discharge of mercury into the Nation's waters has been very drastically reduced following series of indictments brought by the Department of Justice under the Refuse Act late last spring, as I recall against some eight to ten different companies, and that the levels of mercury being discharged are now very low. Mr. ROGERS. But it is still being dumped in many instances, and we know the impact it has. Do we have a national policy as such on this, would you say? Mr. TRAIN. Our Council has requested the National Academy of Sciences to review the mercury situation and report to us, and this is underway at the present time. Mr. ROGERS. Would you let us have a memo on that, about when it may be anticipated, and so forth? Mr. TRAIN. Certainly. (The memorandum follows:) |