A second important, indeed urgent, need fulfilled by S. 1032 is that it allows courts to get to the merits and minimizes the hairsplitting over procedural questions which delay cases needlessly for years and years. Now we find courts, understandably reluctant to go to the merits of the environmental matter, falling back on various procedural failings and sending cases back almost endlessly for the correction of procedural errors. It may be another hearing, or a more ample report, or some required statement. The actual issue is thus delayed and deferred, often for up to a decade, because the courts are unclear about their authority to do more than clean up procedural failings. This is bad jurisprudence, and it helps neither environmentally concerned citizens or government agencies and industries which want a decisive determination about whether they may, or may not, go forward with a planned project.

S. 1032 is a good bill because it is, like a good lawyer's pleading, plain and straightforward. It is not designed to enrich lawyers who can spend months haggling over whether an administrative decision was "a clear error of judgment" or a "mere error of judgment."

Yet that is just the sort of haggling we have in store for us under bills like the pending water-quality bill that the Council on Environmental Quality recommends.

Let me call to your attention just a few of the issues under that bill's citizen suit provision that will engage the artifice of lawyers for years and will lead to endless Supreme Court decisions to be decided by 5 to 4 votes.

Is a decision one that is "discretionary with the Admiinstrator"? I have already commented on that trap for the unwary.

Is the Admiinstrator "diligently prosecuting" an action himself, or "diligently seeking to enforce an order"? Under section 10(k) (2) (A)(ii) of the bill, these tests must be met as a prerequisite to the right to file suit.

In the time that will be consumed determining if an order is being diligently enforced or prosecuted, one could probably try three average environmental cases on the merits.

I urge you to report this bill out, to put this effort at environmental clarity and sanity before the Congress and the people of this country. I can think of no more important and useful legislative step that could be taken in this area than to give to the citizens of the United States a genuine and honest opportunity to take initiatives in seeing that their environmental destiny is managed rationally and in an informed manner. S. 1032 is an important step in that direction.

CASES AND OTHER REFERENCES CITED

1. Michigan Environmental Protection Act of 1970, P.A. 127 of 1970, M.C.L.A. 691.1201-1207.

2. Texas bill, H.B. 56 (introduced by Rep. Rex Braun of Houston).

3. Atkeson Speech, Remarks of Timothy Atkeson, General Counsel, Council on Environmental Quality, Environmental Law Course Sponsored by Environmental Law Institute, George Washington University, February 12, 1971.

4. West Virginia Highlands Conservancy v. Island Creek Coal Co., No. 15,028, U.S. Court of Appeals, 4th Cir., April 6, 1971.

5. Sierra Club v. Hardin, No. Civ. A-16–70, U.S. Dist. Court, Alaska, March 25, 1971.

6. Environmental Defense Fund v. Corps of Engineers, No. LR-70-C-203, U.S. District Court, E.D. Arkansas, February 19, 1971, e ERC 1260.

7. Mineral King Case: Sierra Club v. Morton, No. 939, U.S. Sup. Court, cert. granted February 3, 1971.

8. Clean Air Act, P.L. 91-604, December 31, 1970, § 304 (a).

9. S. 1014, 92nd Cong., 1st Sess., §10 (k).

10. Parker v. United States, 309 F. Supp. 593, U.S. District Court, Colorado, 1970.

11. Citizens to Preserve Overton Park v. Volpe, 39 U.S. Law Week 4287 (March 2, 1971).

12. Sax, Joseph L., Defending the Environment, (New York, Alfred A. Knopf, 1971).

Senator HART. We are adjourned, to resume in this room at 10 o'clock tomorrow.

(Whereupon, at 1:58 p.m., the hearing was adjourned, to reconvene at 10 a.m., Friday, April 16, 1971.)

64-980 0-71- -5

ENVIRONMENTAL PROTECTION ACT OF 1971

FRIDAY, APRIL 16, 1971

U.S. SENATE,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON THE ENVIRONMENT,

Washington, D.C.

The subcommittee met at 10:10 a.m. in room 5110, New Senate Office Building, Hon. Philip A. Hart (chairman of the subcommittee) presiding.

Present: Senators Hart and Hatfield.

Senator HART. The committee will be in order.

I apologize for my late arrival.

First, I welcome a very remarkable Michigan constituent, Mrs. Verna Mize, who is our first witness. Mrs. Mize, I misspoke. I am sure I offended two Maryland Senators, but I still think of you as a constituent.

STATEMENT OF MRS. VERNA G. MIZE, POTOMAC, MD.

Mrs. MIZE. To me Michigan is still my home.

Senator HART. Mrs. Mize, you have given us a statement and I will order it printed in the record in full. As you give it to us, if there is anything you would like to expand on, or if there is any omission or footnoting, it will nonetheless appear in the record. Mrs. MIZE. Thank you, Mr. Chairman.

Mr. Chairman, thank you for inviting me to testify here today. I am Mrs. Verna Mize and presently reside at 11200 River Road in Potomac, Md. I was born and reared in Michigan's Upper Peninsula-and it is this fact that explains the activities I am about to outline. I believe my experience will illustrate the need for the kind of legislation you are considering.

For nearly 4 years, I have been waging a life-and-death battle— the outcome of which will affect the lives of Americans for centuries— a battle to save Lake Superior-the legendary "shining big sea water" that I have loved from the minute I first saw it as a small childLake Superior, clean and transparent-sweet to drink and surpassingly beautiful to behold!

To comprehend what is at stake, one must realize that Lake Superior contains one-twelfth of all the fresh water on earth. Its value for drinking water alone has been calculated at 1.3 trillion dollars! To this must be added its inestimable recreational, economic, and aesthetic worth.

Lake Superior is the last clean Great Lake and, since it flushes the

others, they can't be saved unless Lake Superior is. Yet, many feel that priceless Lake Superior is being "killed" by a giant polluterand we who care are powerless to prevent it. Private individuals, and even groups of them, are no match for rich and powerful industries and their lobbies.

My appeals to officials who-it seems to me-should be protecting the public interest in this precious natural resource have been unheeded. Since the President has repeatedly expressed an interest in the Great Lakes, it is beyond my comprehension how officials can ignore or circumvent his wishes.

In the summer of 1967, I first learned of Lake Superior's peril when I boasted that it was so clean that one could drink directly from it. A friend informed me that this would be extremely hazardous because "the big lake"-as we affectionately call it was being contaminated by millions of tons of taconite tailings which were being dumped into it by the Reserve Mining Co. at Silver Bay, Minn. My first reaction was disbelief. "Surely," said I, "no State would permit harm to come to pure Lake Superior." I was soon to discover that the situation was infinitely more grim than I had been told, as I gathered information about Reserve from every possible source.

It may be well to explain that taconite is iron-bearing ore-and tailings are the pulverized wastes that remain after the iron has been extracted. Simply stated-and perhaps it is oversimplification-the ore is ground and crushed to flourlike fineness, during which process it is repeatedly washed with enormous amounts of water from Lake Superior-some 600 million gallons a day. Giant magnets remove the particles of iron, and the waste is dumped into clean Lake Superior at the rate of approximately 67,000 tons a day-a day, mind you or some 47 tons a minute.

Here is a sample of what Reserve is dumping into our lake. Here are their tailings. This water was clean and transparent, and now look at it, hideous with tailings! And here is a picture of the obscene "waterfall of tailings."

(The picture follows:)