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National Defense Authorization Act for Fiscal Year 2005

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Location: Washington, DC


NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005

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 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.

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