grant this particular permit we don't deem it a major matter that requires a statement, so the permit can extend indefinitely?

Mr. FRI. I don't think it imputes to the Administrator or industry any more motivation to make that statement than the usual requirement of NEPA. Furthermore, by making an administrative determination public in this way it is judicially reviewable. If somebody thinks we have made a mistake, they can drag us into court and try to persuade the judge that we have. It is better than not preparing an impact statement and not telling anybody about it.

Mr. MCCLOSKEY. If the law is enacted, you have the privilege of not having to prepare a statement.

Mr. FRI. We always have the privilege of not preparing a statement if it is not a major Federal action or one that has a significant impact on the environment.

Mr. MCCLOSKEY. For your purposes, this law could be enacted without the language mentioned in it, and does not affect any of the reasons you argued it on. Is that right?

Mr. FRI. From the standpoint of the Administrator, an honest and upright man, I would say this language is somewhat redundant.

Mr. MCCLOSKEY. I agree with your evaluation of the Administrator. However, if this is a government of laws and not of men, why do you need this language?

Mr. FRI. I guess my concern is that, as the chairman pointed out, this committee, and I think properly so, looks at exemptions for EPA with a very careful eye and has a very highly legitimate interest in circumscribing that exemption in the most careful way. Since this does not in any way conflict with what we do anyway, I have very little problem.

Mr. MCCLOSKEY. That is my question. If that language from line 4 through line 8 on page 2 were omitted, would that in any way hamper your ability to issue 20,000 permit applications within the next 18 months?

Mr. FRI. I can't see it would hamper our ability to issue permits.
Mr. MCCLOSKEY. I have no further questions.

Mr. DINGELL. Mr. Rountree.

Mr. ROUNTREE. In the interest of time let me do this fairly quickly and if you want to make a response for the record later on, fine.

Following up Congressman McCloskey's questioning on budget and manpower, I think it would be appropriate, if it hasn't already been done, to have you submit for the record your statistical data and analysis of how many man-hours, personnel, and funds would be required within a stated time period to prepare, process, and issue 102 environmental impact statements for the 3,000 pending permits which would constitute major Federal action. If you want to expand it to cover the remaining 17,000, fine.

Mr. FRI. We will do that.
(The information follows:)

Memorandum:

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Washington, D.C., July 13, 1972.

To: Assistant Director for Legislation, Office of Legislation.
From: Director, Office of Refuse Act Programs.

Subject: H.R. 14103 hearing.

This is in response to your memo of July 10, 1972, on the above subject requesting information on how many man-hours, personnel and funds would be required

to prepare, process and issue Section 102 Environmental Impact Statements for 3,000 major permits.

We believe that it would take an average of four man-weeks (160 man-hours), to prepare an impact statement for the "typical" major permit. It would take an additional four man-weeks to conduct the necessary inter- and intra-agency review, circulation to the public, and final statement issuance, for a total of eight man-weeks (320 man-hours). Therefore, 3,000 major permits would require 24,000 man-weeks (960,000 man-hours) or about 550 man-years to issue impact statements. The Permit Program's goal is to complete action on these 3,000 by the end of calendar year 1972 in order to give the permit recipients three years to construct the necessary pollution controls. If 3,000 impact statements were to be issued by the end of calendar year 1972 it would require 2,200 employees (assuming constant hiring). If this task was extended until July 1, 1973 (allowing only 22 years for construction) impact statement preparation would require 720 people. In either case $11 million would be needed.

Current information indicates that about 10,000 plants discharge in excess of 100,000 gallons per day. If all of these were considered to be major and impact statements were to be issued on all by July 1, 1973, 1,830 man-years, 2,400 employees and $36 million would be required.

Mr. ROUNTREE. What is the status of the Kalur case appeal? Mr. ZENER. The Department of Justice filed its brief last week. Mr. ROUNTREE. As I understand it, in spite of the PICCO case, it is your recommendation today that the committee itself, in essence, overrule this decision within the framework of H.R. 14103?

Mr. FRI. I personally think the PICCO decision does not absolutely foreclose suit under the Refuse Act. It is not clear because there is a peculiar set of factors around it. What the decision does do is introduce ambiguity in that we question how a polluter can be sued for not having a permit if there is no permit program to give him a permit. This legislation which would permit us to get on with the permit program by removing the permits from that piece of logic. We still may have some problems with it because of other kinds of situations. Mr. ROUNTREE. I believe you mentioned on page 8 of your statement the fact that you have established a task force to review the relationship of the National Environmental Policy Act to all of your regulatory programs. I think it would be appropriate for you to supply for the record the actual composition of the task force and what type of work they have done or see involved in to date, and in essence what is their status and the scope of their inquiry, and the date when this subcommittee could expect to receive some detailed findings and

comments.

Mr. FRI. We will do that. The letter to Senator Baker which we have submitted for the record has an attachment of the list of environmental regulatory actions at which we are looking.

Mr. ROUNTREE. Thank you very much, Mr. Chairman. I have no further questions.

Mr. DINGELL. Thank you very much. (The information follows:)

STATUS OF WORK OF NEPA TASK FORCE

In his statement of March 9, 1972, before a Joint Meeting of the Senate Committees on Public Works and on Interior and Insular Affairs, EPA Administrator William Ruckelshaus announced the establishment of a task force to examine the impact of NEPA on EPA's regulatory programs. This task force, chaired by Sheldon Meyers, Director of the Office of Federal Activities, includes representatives from the offices of all five EPA Assistant Administrators, and from the Office of Legislation and the Office of Federal Activities. The task force has reviewed all EPA programs to some extent in light of their relation to NEPA procedures. Several programs have received extensive consideration. Although its analysis has not yet been completed, we expect that the task force will be able to reach general conclusions regarding the effects upon regulatory programs of the Environmental Protection Agency, of following the procedures required by NEPA, taking into account the uncertainties surrounding NEPA's requirements as the Act has been interpreted and applied by the courts.

The task force is expected to complete its work and to report to the Administrator by the end of this summer. At that time, this Agency will be in a position to provide the Subcommittee with more detailed comments on the effect of the application of NEPA on EPA's regulatory programs.

Mr. DINGELL. Mr. Fri, the committee will excuse you at this time. We would hope Mr. Zener would stay here. The chairman is going to suggest Mr. Roisman and Mr. Zwick both come to the committee table, that they appear as a panel and we will ask Mr. Zener to remain and participate in order that we may have the fullest possible exposition to help this committee.

Does that meet with your approval?

Mr. FRI. It certainly does and I certainly appreciate your letting me get back.

Mr. DINGELL. We certainly understand.

Mr. Roisman, you have been before the committee before and it has always been a pleasure to have your assistance.

Mr. Zwick, the Chair recalls I have had the pleasure of working on legislation with you before and it is a privilege to have you back before the committee.

If you will identify yourselves fully by name and address for the purpose of the record to assist our reporter, you may proceed in such order as you deem appropriate.

STATEMENT OF ANTHONY Z. ROISMAN, BERLIN, ROISMAN &

KESSLER

Mr. ROISMAN. Mr. Chairman, my name is Anthony Z. Roisman of Berlin, Roisman & Kessler. I am appearing here this morning on behalf of an organizatiton called Save NEPA which is made up of many individual environmental organizations around the country, but the lead organizations are the Sierra Club, the Environmental Action, the Environmental Policy Center, and Friends of the Earth.

My testimony this morning will be, I fear, not new to the committee because we have been here before.

Mr. Chairman, you predicted there would be a flood of legislative proposals to get around NEPA and it is proving to be the case with one Federal agency after another having legislation pending. We all know what is going on in the Public Works Committee on the

House side with regard to the possibility of amendments dealing with highways and other public works projects.

So I think I can be brief in stating the fundamental precept of Save NEPA's approach.

There is some difference, however, being here this morning. My previous appearance was in reference to a bill that related to what was a mission-oriented agency, the Atomic Energy Commission, whose mission was not necessarily consistent with environmental protection. It was to proceed with the building and operating of nuclear powerplants without regard to the environment, at least until passage of the Natitonal Environmental Policy Act.

Today we have an agency whose mission is environmental protection, and as I look around at the proponents of NEPA amendments, various pressure groups in the country, I think that the environmentalists appropriately feel like Caesar today and look at EPA and say "Et tu Bruté."

EPA is the last one that would have been expected to come here and argue that this important piece of environmental legislation is not applicable to them or should not be applicable to them.

Why are we so concerned about NEPA? In a way I shouldn't have to tell this committee because I think you in your wisdom when you passed this bill knew what an important piece of legislation it could be. What it really is is the administrative procedure act of the environmental movement, with substance added in, and it has been an enormous tool in terms of improving the environment in this country. Its threat as a potential for litigation has caused agencies to go further than they might have ever gone before in terms of environmental protection.

The impact statement requirement has made Federal agencies and their staffs for the first time begin to think about environmental protection not as a catch word but as it really applies.

We have seen it very much in the AEC from and after the Calvert Cliffs decision. There are individuals in that agency who today really understand there is some virtue in protecting fish life, that there is some damage that can be done through the discharge of thermal effluent, that even in terms of radiological impact there may be a broader concept of impact than had originally been thought.

I think that that transformation in the mental processes has come about because the impact statement requires the agency to look inward and then to express outward what it had found. The impact statement is a vehicle to help the agency reach the right decision, and it is not and it should not be interpreted to be a vehicle which will always produce the result that a particular proposed action will not be permitted and that a certain amount of environmental protection will always be imposed. It is a vehicle for balancing that requires that judgements be made that include a variety of factors.

What NEPA guarantees is that when agencies make decisions that will affect the environment, they make the decision with the proper information and they make them correctly, and the correct decision in a particular case may be to allow a pollutant or to disallow it.

The important thing that this committee recognized was that we had to quit making those decisions blindly and making them on a

I think if we replace the words "any agency" by the Environmental Protection Agency you would have precisely the situation you have today with the water permit program.

Even if we assume the permit program only began to be viable when Congressman Reuss and his subcommittee re-remembered its existence and that has been over 2 years, the fact still remains in that entire period of time the EPA, urged and goaded by its friend, the Council on Environmental Quality, has said we don't have to comply with NEPA when we issue permits. They have made no good faith effort to comply with the law, they have made no substantial effort to comply with the law. What they have done is make a very weak, and now we have discovered after the Kalur decision comes down, an illegal decision to ignore it and not without fair warning because this committee has told them again and again in your oversight hearings that they were wrong. And the environmentalists have told them they were wrong.

Oddly enough they were willing to risk that tenuous action administratively and run the risks of court litigation without coming to Congress for any special pieces of legislation at that time.

And now having spun the roulette wheel and lost, they come up here and say to the committee "You were right, NEPA does apply to us and now we would like it not to apply to us."

I submit that if you merely read the language that this committee wrote when it issued the committee report on H.R. 13752 and apply it, here, then you must vote down H.R. 14103. EPA hasn't in good faith or substantially attempted to comply with NEPA with regard to the water permit program. Until it does it is not entitled to special relief. It created the emergency and now it attempts to feed from it. We have suggested, as the Chair is aware from the letter I sent on behalf of Save NEPA to the committee, that this legislation is not needed and there is an alternative.

I was pleased to hear the committee ask Mr. Fri what his position. was. I put his words down because I thought they were pertinent. He said, and this is a quote, "It is not at all clear to us" that the type of emergency approach that has been suggested, namely, issue permits with mini NEPA statements explaining the crisis, which crisis has been explained here ad nauseum by EPA, and claim that as a justification for issuing a less than total detailed environmental statement.

I can't disagree with that. It is not at all clear. Life is a series of doubts. EPA must have thought it was not at all clear NEPA didn't apply to the permit program but went ahead with CEQ's help to suggest it didn't apply until Kalur said they were wrong.

"Yes," Mr. Fri said, "We might have a lawsuit." I will guarantee them they will have a lawsuit. There is no doubt that somebody will sue them, and if not over this, over something else. It is the age of litigation, and there is no way that Congress or this committee can guarantee them they will not be sued. But we would have expected that our friends would stand out there and say "We are ready to be sued if necessary and to defend our environmental protective activities against litigation in the name of environmental protection.

But 6 months after Kalur they have not been willing to take the risk. I ask what would the risk have been. How much worse would we have been today if on December 29 they had issued a permit program