437 



cacy on both sides. Sometimes the permits are issued, and sometimes 

 denied. 



I don't see that the hearing procedure itself would keep us from 

 issuing au}^ permits. I think if you get the hearmg procedure too 

 familiarized, and make it automatic for even a rather minor issuance 

 of a permit, you might well be bogging the agency down. 



Mr. DuPoxT. You might be better off to provide for notification, 

 and not fit the hearing clause into the law. 



Mr. EucKELSHAus. That is my present thinking on it. It is not a 

 question without some difficulty, because we are dealing with due 

 process and the right of j^eople to be heard. 



I would think when the application was filed, and with all of the 

 information in it that is provided in the act, that application would be 

 made public unmediately, and that anybody would have within a cer- 

 tain number of days to comment on the application and request a 

 hearing on the application, if they so desire, and then, if it seemed 

 that the subject was of enough significance, and there was enough 

 controversy about it, we should hold a hearing. 



That is essentially what the Corps does under dredge and fill per- 

 mits, and this procedure has worked very well under their regulation. 



In that way, we could provide due process, and people the right to be 

 heard, and at the same time not get the program and issuance of per- 

 mits bogged down in a lot of endless procedure. 



Mr. dtjPoxt. I would like to ask one more question, Mr. Chairman. 



Mr. Kuckelshaus, I wonder if you would consult the legal arm of 

 your organization and get a legal opinion on the question of substan- 

 tive due process when there are multiple standards approved by the 

 Federal Government or by overlapping Federal and State 

 jurisdictions. 



"AVhat I am getting at here is under the Air Quality Act, for ex- 

 ample, in Delaware, the Federal Government has independently ap- 

 proved three standards. HEW set one mider the Federal criterion. 

 Delaware submitted one that your agency approved, and now you are 

 about to issue a third one on your new sitandards. 



There are three. All of the numbers happen to be ditTerent in one 

 of these cases. If I were an attorney on the other side, I would argue 

 that this is totalh' lacking in substantive due process here, because 

 they are irrelevant criteria. There are three criteria, all approved by 

 the Federal Government. 



Mr. RucKELSHAus. I think clearly the national standard we are 

 about to approve would preempt the other two. 



Mr. DuPoNT. The reason this is important is if we allow the States 

 to legislate in the area, and you end up with two conflicting criteria 

 on ocean dumping, I suggest that maybe the whole thing could be 

 brought down by one lawsuit. 



Mr. RucKELSHATJS. Wc will look into it. I am sure the criteria is con- 

 flicting. One is more strict, and that one would apply. 



Mr. DuPoNT. Well, they are overlapping, if you will. But I think 

 this is a chink in the armor that we should not perpetuate in this 

 law. 



Mr. RuGKELSHATJS. I agree with you, and I also think that I don't 

 asree that we should not have stricter standards. I am not sure I agree 

 with that. 



