[Congressional Record Volume 150, Number 72 (Thursday, May 20, 2004)]
[Senate]
[Pages S5902-S5907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2400, which the clerk will report.

[[Page S5903]]

  The legislative clerk read as follows:

       A bill (S. 2400) to authorize appropriations for fiscal 
     year 2005 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Forces, and for other purposes.

  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, I understand Senator Warner is on his way 
to the floor. I thought, in the meantime, I would make a few comments 
on a very important section of the Defense authorization bill. Then the 
plan is to recognize Senator Graham of South Carolina. I believe he has 
an amendment he is working on.
  As chairman of the Strategic Subcommittee of the Armed Services 
Committee, I have the responsibility of overseeing a lot of nuclear 
programs, one of the most important of which is nuclear cleanup. The 
Department of Energy is facing the potential collapse of its plan to 
accelerate risk reduction and cleanup of this Nation's nuclear weapons 
production legacy. I think we must act responsibly to give the 
Department the clarification it needs to complete cleanup of the sites 
in our lifetime.
  In 1997, the Rocky Flats cleanup was expected to take until 2045, at 
a cost of $17.1 billion. Now, working together, the State Government of 
Colorado and the Department of Energy have developed a plan under which 
closure is expected in 2006, at a cost of $7.1 billion. Key to our 
success was the collaboration between the State and the Department of 
Energy in devising the path forward.
  The initiative to accelerate cleanup of the tank farms was proceeding 
on a similar path in other States. The DOE had been working with each 
of the various host States to develop strategies for acceleration and 
closure plans in the States of Washington and Idaho, as well as South 
Carolina.
  We were so very successful in getting cleanup at Rocky Flats in 
Colorado and saving billions upon billions of dollars for the taxpayers 
that I was hoping we could put together a plan that would be working 
well in cleanup efforts in those three States which still have 
considerable challenges ahead of them.
  Last year, the Idaho District Court threw a monkey wrench in those 
plans. The court interpreted the Nuclear Waste Policy Act to prevent 
the plans that DOE and the States have agreed on from going forward, by 
striking down a cornerstone of these plans, which was DOE's approach to 
classifying the waste in the tanks.
  It is not just the accelerated cleanup plans that were called into 
question, it is also the base plans that the Department of Energy had 
in place for years. Now in South Carolina and Washington, since the 
1980s, it has been clear that the cleanup plans have called for less 
radioactive tank waste being treated and disposed of onsite. Unless the 
law is clarified, these plans will not be able to proceed, and it will 
be impossible to devise new ones.
  It is our responsibility in the Congress and as members of the Armed 
Services Committee to clarify the law so as to allow the plans agreed 
upon by DOE and the States to proceed. I am convinced if we work 
together we can achieve the same kind of results on complex issues such 
as we achieved at Rocky Flats, where we accelerated cleanup by 40 years 
at Rocky Flats, significantly reducing risks to the public and workers 
and saving the taxpayers $10 billion.
  If we do not get this problem solved at the nuclear sites in Idaho 
and Washington and South Carolina, what we are going to end up with is 
a possible increase in additional costs of $86 billion. We simply 
cannot deal with those kinds of costs. And consider the stress that is 
in the Armed Services right now. So it means you just do not move 
forward with cleanup.
  The Senators from those three States, I know, have been spending a 
good deal of time trying to work out an agreement. It is called the WIR 
issue. In committee, we fenced off $350 million that was set aside to 
deal with cleanup in those three sites and other parts of the country. 
We did that so it would not get used in other parts of the bill because 
if you allow that money to go out, that means there is less money for 
cleanup. And those of us who have been pushing cleanup for years in the 
Senate would not want to lose that $350 million because it would be 
just hanging out there. So we fenced it off.
  We adopted an amendment in committee that was proposed by Senator 
Graham to kind of get us out of committee and give the delegations from 
those States an opportunity to negotiate and see if they could work out 
some better provisions than what we left with out of committee. We 
simply have to work out something. If we cannot get an agreement, maybe 
we will have to step in to just work with those three States and see 
what other provisions we can move forward so the cleanup, at least, can 
move forward.
  I am very concerned that we do not stop cleanup. Cleanup is very 
important. It is something we need to move forward. The plan DOE had in 
mind was a plan that would have met performance standards that have 
been specified by the Nuclear Regulatory Commission. They are the ones 
who have oversight for disposal of low-level waste. And the debate over 
whether the grout used to stabilize residue should be included in 
concentration areas is basically a red herring because the bottom line 
is, what we are doing here meets the requirements of the Nuclear 
Regulatory Commission.
  So I am hopeful that on the floor of the Senate we can get this 
problem further resolved than what we did in committee.
  I understand Senator Graham might have an amendment he wants to bring 
forward.
  Mr. President, I recognize the Senator from South Carolina.
  The PRESIDING OFFICER. The Senator cannot recognize other Senators.
  The Senator from South Carolina.


                           Amendment No. 3170

  Mr. GRAHAM of South Carolina. Mr. President, I call up amendment No. 
3170.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The senior assistant bill clerk read as follows:

       The Senator from South Carolina [Mr. Graham] proposes an 
     amendment numbered 3170.

  The PRESIDING OFFICER. Without objection, reading of the amendment is 
dispensed with.
  The amendment is as follows:

 (Purpose: To provide for the treatment by the Department of Energy of 
                            waste material)

       Strike section 3119 and insert the following:

     SEC. 3119. TREATMENT OF WASTE MATERIAL.

       (a) Availability of Funds for Treatment.--Of the amount 
     authorized to be appropriated by section 3102(a)(1) for 
     environmental management for defense site acceleration 
     completion, $350,000,000 shall be available for the following 
     purposes at the sites referred to in subsection (b):
       (1) The safe management of tanks or tank farms used to 
     store waste from reprocessing activities.
       (2) The on-site treatment and storage of wastes from 
     reprocessing activities and related waste.
       (3) The consolidation of tank waste.
       (4) The emptying and cleaning of storage tanks.
       (5) Actions under section 3116.
       (b) Sites.--The sites referred to in this subsection are as 
     follows:
       (1) The Idaho National Engineering and Environmental 
     Laboratory, Idaho.
       (2) The Savannah River Site, Aiken, South Carolina.
       (3) The Hanford Site, Richland, Washington.

  Mr. GRAHAM of Florida. Mr. President, I ask unanimous consent that 
Senators Allard and Crapo be added as cosponsors.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM of South Carolina. Mr. President, I appreciate Senator 
Allard's comments. I will try to explain this amendment the best I can 
and as briefly as I can.
  Several States played a very key role in winning the cold war by 
making sure we had a strong and effective nuclear deterrent. South 
Carolina is one of them, as are Idaho and Washington. They are States 
that have cold-war legacy materials.
  As Senator Allard suggested, the Federal Government has been working 
with these sites for decades now. We spent billions of dollars--
billions and billions and billions of dollars--to clean up the cold-war 
legacy that exists at the Savannah River site and other sites. To be 
honest with you, we have spent a lot of money and have

[[Page S5904]]

done very little cleanup. From a taxpayer point of view, from an 
environmental point of view, the longer you put this off, the more it 
costs, and the more damage that can be done.
  I have an amendment that would allow $350 million that has been put 
on the table by the Department of Energy to accelerate cleanup--$350 
million has been put on the table in, I think, a very creative fashion 
to accelerate cleanup at these sites, putting new money on the table.
  Here is a little history about what has gone on in terms of how DOE 
and the sites have been dealing with each other. There are 50-plus 
tanks of high-level waste in South Carolina as a direct result of 
winning the cold war, cold war legacy materials. The State of 
Washington has certainly done its share in helping win the cold war. 
They have a waste tank problem. Idaho has waste. These three States 
have a problem. It is now time to create an environment to fix the 
problem for each State.
  Two years ago the State of Idaho entered into a cleanup agreement 
with the Department of Energy, setting standards that the State of 
Idaho would agree to help remediate the environment and clean up the 
sites in Idaho so that we could move forward to have a new day in 
Idaho.
  Washington has been negotiating with the Department of Energy to come 
up with acceptable standards for cleanup of the waste in tanks and 
other areas, and there are ongoing negotiations.
  South Carolina, for over a year, has been negotiating with the 
Department of Energy about how to clean up 51 tanks that contain high-
level nuclear waste. People in South Carolina want the waste cleaned 
up. They want it done in an environmentally sound manner, and people in 
South Carolina want it done sooner rather than later. They are 
conscious of the cost to the taxpayer.
  All three States at some stage have negotiated with the Department of 
Energy about waste in their particular States and how they can find 
agreement between the Department of Energy and the State to remediate 
the site.
  I am here to say, thankfully, that the Department of Energy and the 
State regulators in South Carolina have come up with a plan that will 
allow these 51 tanks, 2 of which have already been cleaned up, to be 
cleaned up and to close them, that is environmentally sound, in my 
opinion.
  But it is just not my opinion. The people responsible for the 
groundwater and the environmental safety of South Carolina, in 
conjunction with the Governor's office and the Department of Energy, 
have come up with an agreement to allow these tanks to be closed. The 
tanks will be cleaned up in a manner that will save $16 billion 
compared to the old plan, and it will allow the tanks to be closed up 
23 years ahead of schedule.
  The issue is what is environmentally sound cleanup for the State of 
South Carolina and any other State that has this legacy material. No. 
1, no State should be forced to accept standards that they find 
unacceptable for the State in terms of their environmental needs. The 
amendment I have authored and that is part of the base Defense 
authorization bill ratifies the agreement that South Carolina has 
achieved with the Department of Energy. Under that agreement, my State 
regulators tell me that the permitting process of how you close up a 
tank and when you close up a tank and when a tank can be closed up is a 
collaborative process between the State and the Department of Energy. 
They feel they are protected. They have reached an agreement that the 
last 1.5 inches of waste that is in the bottom of these rather large 
tanks can be environmentally remediated in a manner safe for South 
Carolina that would prevent people from unnecessarily risking their 
lives to go get that last inch and a half and save $16 billion.
  What does it mean? It means that some things that were going to go to 
Yucca Mountain don't have to go because to send them to Yucca Mountain 
is not environmentally necessary and it is not financially sensible. I 
hope other States can find a way to get there. I know Washington is 
talking. I know Idaho had an agreement 2 years ago. All I am asking is 
that South Carolina be allowed to execute this agreement that is good 
for South Carolina and the Nation and will move forward and clean up in 
a sound manner.

  The amendment I am offering today doesn't deal with that issue. It 
deals with the idea that the $350 million to clean up sites in 
Washington and Idaho, that the money due to Washington and Idaho shall 
be spent on cleanup, that the Department of Energy cannot require 
either one of those States to enter into an agreement to get this 
cleanup money like we have in South Carolina.
  My goal has been to do two things: that my State could reach a sound 
agreement with the Department of Energy to get it ratified for the best 
interests of South Carolina--and the Nation--and not do anything in 
South Carolina that is going to harm any other State's ability to 
negotiate on their terms and to reach an agreement that is sound for 
their State, and not to change any standards of what would leave South 
Carolina going to Yucca Mountain or any other repository. So this 
language requires the Department of Energy to spend money to treat the 
waste in South Carolina, Idaho, and Washington. It also allows the 
agreement to be financed in South Carolina.
  I know there is some disagreement on this issue. I welcome the 
debate. That is what the Senate is all about, having two sides of every 
story. But this is not something we just came into lightly; this is 
something that has been going on between the Department of Energy and 
South Carolina for a very long time. Similar processes are going on now 
in Idaho and Washington.
  I am asking this body to join with me to make sure that the 
Department of Energy spends the money to treat the waste in these three 
sites, and that we not bind any site by the agreement in South Carolina 
but we allow the agreement between South Carolina and the Department of 
Energy to be ratified. Not only is it good for my State, it is good for 
this Nation if we can clean up these tanks in an environmentally sound 
manner 23 years ahead of schedule and save $16 billion. That is my 
hope.
  As to what is left behind, the Nuclear Regulatory Commission has 
looked at the 1.5 inches of material left in the bottom of the tank and 
has classified it as waste incidental to reprocessing, which is a 
separate category from high-level waste. The people in South Carolina 
who regulate our environment and have an obligation to protect the 
State's groundwater and other environmental obligations have said that 
this waste that is left can be dealt with in a sound manner, and to get 
the 1.5 inches totally out would risk people's lives and would take 
unnecessary time and expense, and that we are going to secure these 
tanks in a way over which South Carolina would have control.
  I didn't come to Washington to tell my State it is not a player in 
controlling its waste. I hope Washington will allow us who have these 
sites to work in a sound manner for the benefit of the taxpayers in the 
State and the Nation and for the environmental needs of our State.
  That is what this is about. If we stay the old course and we never 
allow anybody to do anything other than the most extreme groups out 
there in terms of what this is all about--and there is politics in 
every issue, and there should be. There are some people who have an 
agenda that is not about the groundwater in South Carolina because they 
don't live there. Some of them are very well motivated, but some of 
them have an agenda to make cleaning up these sites very difficult, to 
the point that they don't care what it costs, and they are not trying 
to get a fair standard. They want to make it take as long as it takes 
and spend as much money as is necessary and send everything to Yucca 
Mountain and other repositories because they have an agenda that we 
don't want to produce any more nuclear power and run out of places to 
store fuel rods.
  I don't want to be part of that agenda. I want to be a part of an 
agenda that allows each State that has these waste materials to be able 
to control their destiny, do it in a way that is safe for the State and 
makes sense for the Nation. That is exactly what we have accomplished.
  Idaho and Washington have tried to do the same thing we are doing. 
They have tried to work with the Department of Energy to get an 
agreement.

[[Page S5905]]

We have been successful. I will never, as a Senator, leverage one of my 
sister States here to have to agree to something to which they don't 
want to agree. That is not my goal.
  I hope the Senate and the Congress will allow an agreement that has 
been negotiated to its full term to be approved and to help South 
Carolina save some money. I am ready to agree on a small time 
agreement, a large one, or whatever time agreement we can have on this 
amendment, and have a vote.
  Mr. ALLARD. If the Senator from South Carolina will yield, I wish to 
enter into a colloquy with him to make sure we have laid out this 
debate.
  First, we had a plan by the DOE to expedite cleanups of sites in 
South Carolina, Washington, and Idaho. Then we had a court case that 
was litigated in the district court in Idaho. As a result of that, that 
case is going to definitely be appealed to the Federal court of appeals 
and may even go as far as the U.S. Supreme Court. In the meantime, we 
have some cleanup needs in these various States.
  As I understand what the Senator's amendment would provide, we are 
going to keep our $350 million for cycling, which is vital, and it is 
going to say that the money is going to be available for treatment. But 
we are not going to have any removal or anything from a contaminated 
site, except for South Carolina. South Carolina has a plan that has 
been worked out with the State. The State is very comfortable with it. 
It is a State-driven plan. We are trying to work out something where we 
don't create a problem among the various States. We don't want this 
process to tie up South Carolina and, obviously, we want to see cleanup 
move ahead in Idaho and Washington.
  My concern, as chairman of the subcommittee, is that I don't want to 
see taxpayer dollars wasted on a huge white elephant out there that 
will add something like $86 billion to the cleanup budget, which we 
don't have.
  I hope we can work this out, and you are trying to work it out among 
yourselves. I hope I characterized it properly.
  Mr. GRAHAM of South Carolina. The Senator has done a good job 
characterizing it.
  No. 1, this amendment makes the money flow for treatment. There is 
the $350 million in committee with regard to the argument that there is 
a fence built around it. If there is any concern about it, this 
amendment knocks that fence down. The money has to be spent on 
treatment of waste. There is a lot of waste to be treated. But it also 
allows for a disposal plan agreed to between South Carolina and DOE.
  Other States, the Senator is right, have been negotiating and trying 
to find a disposal plan. We have just been successful, that is all. 
Other States have different needs and tank problems. We don't have 
tanks leaking as they do in Washington. Washington has different needs 
and concerns. I don't want to wait 23 years and allow these things to 
leak as we try to clean up the last inch and a half; I think that does 
more damage than good.
  This is where we do agree. DOE, by order 43.5, I think it is, tried 
to issue an internal order allowing them to unilaterally go into these 
States and say: Here are the cleanup standards, take it or leave it.

  Then you had a court case in Idaho where South Carolina joined as a 
friend of the court, with an amicus brief, saying, no, we don't want 
the DOE unilaterally telling a State to take it or leave it. That is 
why we joined as a friend of the court. We think that is a bad policy.
  What we want to do, and what all three States have tried to do, is 
make sure cleanup occurs in an environmentally sound manner, where the 
States are involved. What we have been able to do in South Carolina is 
reach that agreement to have the waste stream cleaned up. What is left 
in the bottom of the tank we believe we can handle in an 
environmentally sound manner. Some people don't want us to do that. 
That is not their agenda to accomplish that. It is my agenda that we 
accomplish that when and how we can.
  We are not going to let the DOE unilaterally decide. That is what 
this amendment is about. It doesn't allow the Department of Energy to 
take money away from a site. They have to let the $350 million go. The 
language in the bill, which Senator Allard helped me write and get 
passed, ensures that South Carolina is protected. Now we need language 
to ratify that agreement.
  Mr. ALLARD. Mr. President, I thank the Senator for his hard work and 
diligence. Certainly, I am glad he is a member of the Armed Services 
Committee. It has been a pleasure to work with him on many issues.
  I know there is a good deal of frustration on this particular issue. 
I recognize, in a public way, his dedication and hard work on this 
issue in trying to clean up this area. It is very important to his 
State and, hopefully, we can reach some kind of agreement in the 
ensuing few hours on this debate.
  Mr. GRAHAM of South Carolina. I say to Senator Allard, he has been a 
very responsible subcommittee chairman here. This is a big deal for the 
country, to South Carolina, Idaho, and Washington, and any other State. 
It is a huge deal. We need to make sure these sites are remediated and 
the environment of each State is protected and that we get on with it 
and not give DOE unilateral authority to tell us what to do, and do it 
in a collaborative way.
  We have achieved that in South Carolina. I think it would be 
inappropriate if Washington or Idaho could reach an agreement between 
DOE, and Idaho and Washington ran it by the NRC and they say, yes, we 
like this agreement, we think it protects us, we would like to do it, 
and then somebody else says no, or they make up a reason of telling us 
no, which would prevent this from ever happening.
  Now, we are going to disagree over some aspects of this. But here is 
where we do not disagree. The States are going to get the money, 
whether or not they reach an agreement with DOE. We are not going to 
let them do it unilaterally. We want to make sure every State has a 
right to negotiate an agreement on their own terms.
  There is nothing in this amendment that is going to prejudice another 
State in terms of their ability to reach an agreement with DOE on their 
terms, if they can. I think this is a very important concept.
  This is a pivotal time in our effort to clean up these sites. I say 
to my friend from Nevada and all those folks at Yucca Mountain, if I 
were in Nevada, I would have the same concerns. I totally understand 
that. But the rest of us have an obligation, too. I don't think it is 
fair just to make Nevada be the only one on the receiving end of what 
is fair and appropriate. If we can, in our individual States, in an 
environmentally sound manner, deal with some of this waste--an inch and 
a half--not to send it to Yucca Mountain, not spend $16 billion and 
take 23 years, I think we have some obligation to be part of the 
solution.
  Let it be said that South Carolina, from the regulator's side--their 
view is we have reached that agreement. I hope we can pass this 
amendment.
  Mr. ALLARD. Mr. President, I have a letter from the Defense Nuclear 
Facilities Safety Board to the Secretary of Energy. It addresses the 
disposal of waste as contemplated in section 3116. The last paragraph 
reads:

       The Board believes that disposal of wastes as contemplated 
     in Section 3116 can be accomplished safely and should enable 
     efficient disposition of the radioactive waste. The Board, 
     under its statutory safety oversight mandate, will continue 
     to follow DOE's actions to ensure that activities related to 
     disposal of such waste are conducted safely.

  I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Hon. Spencer Abraham,
     Secretary of Energy,
     Washington, DC.
       Dear Secretary Abraham: This is in response to the letter 
     of May 13, 2004, from the Assistant Secretary for 
     Environmental Management regarding the nuclear safety 
     consequences of proposed Section 3116 of the National Defense 
     Authorization Act for Fiscal Year 2005 (S. 2400). Section 
     3116 would permit certain radioactive residual materials to 
     remain in a facility (including a tank) at the Savannah River 
     Site.
       Safe disposal of radioactive waste is essential to 
     preserving public health and safety. In 1994, the Board 
     issued Recommendation 94-2, Conformance with Safety Standards 
     at Department of Energy Low-Level Nuclear Waste and Disposal 
     Sites, which identified the importance of performance 
     assessments for ensuring safe disposal of radioactive 
     materials in shallow land burial grounds. Department of 
     Energy (DOE) subsequently

[[Page S5906]]

     issued Order 435.1, Radioactive Waste Management, which 
     defines an acceptable process for conducting the required 
     performance assessments for DOE onsite waste disposal 
     activities.
       During the period 1996 to 1997, the DOE at the Savannah 
     River Site undertook the closure of two high level waste 
     tanks. At that time, The Defense Nuclear Facilities Safety 
     Board (Board) closely observed the undertakings and saw no 
     basis to determine that the remaining residual material 
     constituted a danger to the public. The closure process 
     involved transport modeling of the residual material left in 
     the tanks.
       When conducted with appropriate rigor, a performance 
     assessment can provide a conservative estimate of potential 
     safety and health consequences. When these estimates meet 
     acceptable safety standards (i.e., DOE Order 435.1 or 10 CFR 
     Part 61 subpart C, Performance Objectives), it is reasonable 
     to conclude that the disposal action adequately protects 
     public health and safety.
       The Board believes that disposal of wastes as contemplated 
     in Section 3116 can be accomplished safely and should enable 
     efficient disposition of the radioactive waste. The Board, 
     under its statutory safety oversight mandate, will continue 
     to follow DOE's actions to ensure that activities related to 
     disposal of such wastes are conducted safely.
           Sincerely,
                                                   John T. Conway,
                                                         Chairman.

  Mr. ALLARD. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina, Mr. Hollings, 
is recognized.
  Mr. HOLLINGS. Mr. President, I have not had the opportunity to work 
with my distinguished colleague. We have worked very closely together 
on many matters, and I have the highest respect for him. It has really 
been a pleasure for this Senator to work with him as he has come over 
to the Senate.
  Only yesterday on our way to a vote, I asked him about this issue 
because I heard about it from our colleague from the State of 
Washington, Senator Cantwell. He said he had a letter from the 
Environmental Control Division of the State of South Carolina.
  I thereupon got in touch with the director of the DHEC of South 
Carolina, the Department of Health and Environmental Control. Mr. 
Hunter said: Oh, no, we adamantly oppose any kind of reclassification 
of high-level to low-level.
  I said: That is exactly what is being done.
  He said: That is not what we understand. We know that Senator Graham 
has been working with the Department of Energy, and we were led to 
believe we would have a signoff on it and his amendment would give us 
any kind of collaborative agreement, as characterized by the 
distinguished Senator, that was worked out, and we could sign off on 
it.
  On page 2 of the amendment, he refers to subsection A and subsection 
B--rather subsection A shall not apply to any other material otherwise 
covered by that subsection that is transported from the State. Then 
down in section D, in this section, the term ``State'' means the State 
of South Carolina. So referring to that particular section, what we 
have is not a preemption, but really the preemption is invalid. That 
language is, ``any such action may be completed pursuant to the terms 
of the closure plan of the State-issued permit notwithstanding the 
final criteria adopted by the rulemaking pursuant to subsection A.''
  We had this in the Kentucky case with respect to the supremacy 
clause. We know this has already been taken to the 6th Circuit Court. 
That does not protect the State of South Carolina at all. I know my 
distinguished colleague wants to protect the State of South Carolina, 
but I think he even knows now that language does not protect the State.
  I asked: Where in the world did this all come from anyway?
  He said: Oh, Senator, we have been working on it.
  We have a brief filed on March 25, a certificate of a brief in the 
case of the National Resources Defense Council v. Spencer Abraham. We 
won the case, and it is up on appeal. On this appeal, we have signed 
that brief, Samuel L. Finckley III, South Carolina Department of Health 
and Environmental Control--that was just a few weeks ago--stating the 
Department's position.
  I have nothing from the Governor. I know Governor Sanford extremely 
well. We traveled back and forth for 6 years when he was in Congress. I 
know the one thing he is known for and that is protecting the 
environment. Governor Sanford does not approve of this. I understand 
informally he told my distinguished colleague: If you can work out an 
agreement that protects the State of South Carolina, then we will go 
along with it. That is not what is occurring with this amendment.
  I have been in this game for 50 years. In 1955, I was the chairman of 
the Regional Advisory Council on Nuclear Energy. We called it RACNE 
then. It was a 17-State compact. We had all the dangers of nuclear 
emissions. We looked for places for permanent storage. At that time, in 
the early fifties, they said--at that time, I was Lieutenant Governor--
they said: Governor, don't worry about it. This Savannah River site we 
are developing is twofold very dangerous for any kind of permanent 
storage. One reason is this site is over the Tuscaloosa aquifer water 
supply that comes down below Aiken County. More than anything else, 
there is an earthquake fault from Calhoun, Orangeburg, into Aiken 
County. He said: We are not going to have anything stored here for over 
2 years.

  Two years became 4, 4 became 8, 8 became 16, 16 became 32, and now it 
is some 50 years. It has been some 50 years and that problem has yet to 
be solved.
  We worked on the financial end of the problem, and we exacted 1/10th 
of one cent on a kilowatt of power sold by the various energy companies 
engaged in nuclear power, and that fund has some $13 billion in it. We 
are not worried about money. The Department of Energy went around--and 
that is the case to which I am referring. They ran around and 
surreptitiously said we are going to reclassify and call it low-level 
waste, and that means we can save a lot of money and bother and use the 
money maybe on tax cuts. Don't worry about that fund because the power 
companies have sued on the particular fund. Otherwise, that fund has 
been built up, and there is plenty of money.
  It is just not cleaning it up. They were trying to empty out the 
waste and throw some sand and concrete on top of it. We found out in 
expert hearings back in 1982, when we classified it as high-level 
waste--the finest of experts came in, and that is where the 
classification came, and that, my dear friends, is what should occur 
here.
  If there is some reason to reclassify, then let's come before the 
Environment Committee and the Energy Committee and let's have a hearing 
as has been provided for by my colleague, the distinguished Congressman 
from the 5th District, Congressman John Spratt, whereby on the House 
side they said, let's refer to the National Academy of Sciences, and we 
will go about it in a deliberate way, and if the Energy Department 
wants it reclassified and has some authoritative source that will 
support their particular position, maybe the Congress itself will 
reclassify. But this has been classified by us, upheld in the courts, 
now on appeal, and here they come around in a fancy little 
surreptitious way on a Defense authorization bill and get the Graham 
language in the bill that would not hold up in the State legislature 
where general provision would say it is unconstitutional.
  When I heard about this going on, I looked to see if maybe this was 
unconstitutional, but it is not.
  That can be done, and it has been done already. So there has been 
precedent set for this. I can say categorically, the State in the last 
48 hours is in an uproar over this particular measure. They did not 
know of any kind of special provision that was going to be put on for 
one State in a Defense authorization bill. They resent it, they resist 
it, and they have asked me by advertisement and telephone calls to 
please ``adamantly oppose,'' is the expression they have used.
  This is all in the offing. We can see what my colleague has done. He 
has put language on here so that when the deal is made with the Energy 
Department where apparently the State still would have a signoff--under 
the supremacy clause, the Federal Government has got it--and it means 
absolutely nothing, but it allows them to get the deal and lock the 
State in, and then we will start all the legal proceedings all over 
again.
  So I implore my colleagues on both sides of the aisle, this is no way 
to legislate high-level waste in the United States. I have worked with 
the Department of Energy. We have the facility

[[Page S5907]]

down when Secretary Richardson--now the Governor of New Mexico--was in, 
and I have brought every particular benefit that I could possibly bring 
to this particular facility, but apparently the contractors want to 
move ahead and certainly the Department of Energy wants to move ahead 
and not have to pay out the full sums. If they can get a precedent set 
for the reclassification in a surreptitious fashion of this kind called 
low-level waste, then it will set a precedent for the other States and 
we have an environmental disaster in the offing because we will not be 
here.
  That is about the attitude around here, that if it can be handled in 
a day's time, then let us forget about the future. This is a highly 
dangerous procedure. It is wrong for the State of South Carolina. It is 
wrong for the Nation. It is wrong for the Department of Energy.
  I had misgivings when the Secretary of Energy came up for nomination. 
I remembered very clearly my debate with Spencer Abraham. He wanted to 
abolish the Department of Energy and abolish the Department of 
Commerce. I can see him over on that side of the floor right now. We 
had a debate about that. I was sort of shocked that he would want to be 
Secretary of a Department that he wanted to abolish, but he is a good 
fellow. I got along with him, and I said, all right, I will cast a vote 
and keep my fingers crossed. But this is monkeyshines. We cannot go 
along with this one.
  If they want a reclassification--this is not a money problem, this is 
a reclassification problem--then let us reclassify it in the orderly 
fashion in which we made the classification back some 22 years ago in 
the Congress.
  The House of Representatives says let us handle it that way, so let 
us handle it that way over in the Senate. If we want to give permission 
to have hearings and then change that law, that is fine business, let 
us do it in that fashion, but do not put a rider that says this is for 
the interest of the State of South Carolina because it is not. It is 
not in the interest of the United States of America.
  I do not know how else we can solve this. I know the other States are 
involved. The Senator from Michigan on the Defense appropriations has 
been very alert on this particular measure. I am just a Johnny-come-
lately to it, but it affects my State, and it affects an area that I 
have been vitally interested in for over 50 years now. I have worked 
with every particular facet that one can think of. Never has this 
Senator been contacted about this deal. I know the Governor, I know his 
position on the environment, and I know he will not approve of this 
one.
  I can tell my colleagues right now that reclassifying high level as 
low level, saying that we protect the State of South Carolina when we 
know the legalistic wording is just that, legalistic wording, has 
already been found ineffective by the highest court of the land.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator 
from Virginia.

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