National Defense Authorization Act for Fiscal Year 2005

Floor Speech

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Mr. CRAPO. Mr. President, I therefore ask unanimous consent that it be made in order that I be allowed to amend my amendment in the form of amendments that are at the desk at this time. The purpose of this request is that there has been some question raised in regard to the South Carolina language, as to whether it creates any precedential value in regard to other States which are dealing with radioactive materials and the handling of them. We do not believe there is such a precedential effect and we believe it is very clear there is not, but because some have raised that question, we would like to simply amend the legislation that is before us today to make it perfectly clear there is no precedential effect of this language on any State other than South Carolina.

For that reason, I ask unanimous consent that I be allowed to amend my own amendment, which is at the desk, in the form of an amendment which we have presented to the other side.

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Mr. CRAPO. Mr. President, I want to weigh in on this issue and try to bring clarity to what it comes down to. As has been said by virtually every speaker today, this issue was caused as a result of the outcome of a lawsuit in Idaho with regard to the authority and jurisdiction and prerogatives of the Department of Energy in managing high-level waste as a result of reprocessing.

When the court case came down the way it did, it threw into question the manner in which the Department of Energy would proceed with its cleanup operations in three States-Washington, Idaho, and South Carolina. There are people on all sides of that issue. Some say it is clear what they have to do. There are those who say it is unclear. There are those who say we can find clarity if we take some time to work it through between the States and the DOE.

The bottom line is there was an issue. As a result of this issue, the question of funding availability for the ongoing cleanup became paramount. It was the DOE's position, as taken by the Office of Management and Budget, that if we didn't have a clear path forward on these cleanups, approximately $350 million that would have been available and was authorized and appropriated for cleanup in these three States would not be available in the next year. So the first urgent hurdle that came up was we had to make clear that the cleanup had to go on while we are trying to resolve these issues.

The second issue that came up is, how do we resolve them? In that context, the Senator from South Carolina is exactly correct. Each of the three involved States-Idaho, my State; his State, South Carolina; and the State of Washington-got involved in negotiating with the Department of Energy. In fact, in the beginning, there was some concern from the States, as to whether they were going to be allowed to be engaged in these negotiations, and Senator Craig and I, from Idaho, and the Senator from South Carolina, Senator Graham, made it clear we would take no steps that our States did not authorize and approve. We actually provided the incentive for these negotiations to take place.

As we began moving forward, a dynamic developed where it became evident that the State of South Carolina, because of differences in the State of South Carolina's issues, was going to make it through to and reach an agreement with the Department of Energy. This agreement, as has already been indicated, is one supported by the Governor of South Carolina, the attorney general, the applicable environmental regulator, and many others in the State whose input the Senator from South Carolina has brought forth as part of the record.

The States of Washington and Idaho, however, were not able to reach an agreement. Then we came forward and this bill came to the floor, and we have now found ourselves here with the State of South Carolina having an agreement, and the States of Idaho and Washington not having an agreement, and the question as to the money.

A very important issue that seems to have immediately passed in the debate today is what happened in the beginning of the debate. Today, my amendment and the amendment of the Senator from South Carolina, joined in by Senator Craig, were passed with a voice vote. Those amendments did a very critical and important thing. They made it clear the authorized cleanup dollars, the $350 million, were going to largely be able to be made available for continuing operations while we continue to try to work out these negotiations. I think that is a big part of the story today that needs to be made clear, because a big success for the country has been achieved already through those amendments.

Secondly, we are now dealing with the question of the South Carolina language. When you boil down the debate today, it comes down to a question we have been focusing on in Idaho. And that is, does the South Carolina language create a precedent or some kind of a pressure which would cause us to have to deal with this issue in the State of Idaho or the State of Washington any differently?

The answer to that is simply no. In fact, I think if there is any precedent in what is happening in this dynamic today, it is the opposite, because the State of Idaho, Senator Craig, and I made it very clear to the committee, to the Department of Energy, and to everyone-and Senator Graham of South Carolina joined us in making it clear-there would be no language in this bill relating to the State of Idaho unless and until the State of Idaho agreed to such language and Idaho's Senators brought that language forward. That is why we have very clear language in the bill that says the language that deals with South Carolina deals with South Carolina only.

Having said that, there still has been a debate promulgated around the country, and it is raging in Idaho with regard to this very issue. Is there any precedential value in the South Carolina language that would cause a threat to any other State, particularly Idaho or Washington?

Senator Craig and I strongly believe the answer to that is no, but there is a question about it. Idaho's Governor, Governor Kempthorne, has been quoted on this floor as raising the question. So Senator Craig and I, working with the Senator from South Carolina and other Senators, decided we would make it ironclad clear, if it was not so clear already.

This morning, before this whole debate began, I asked unanimous consent to bring a further amendment that would have made it crystal clear, if it is not already crystal clear, that there is no precedential value here. Let me say before I go through what this amendment is, we believe it was crystal clear already in the statutory language, and Senator Graham, Senator Craig, and I and others have made it clear in the record developed in the debate on this bill that there is no precedential impact of this language because each State is dealing with its own circumstances and working out its own solutions with the Department of Energy.

Having said that, here is the language, frankly, we were not given unanimous consent to put into the bill this morning. The language would have said:

Nothing in this section shall alter or jeopardize the full implementation of the settlement agreement entered into by the United States with the State of Idaho. . . .

And then there is a description of that agreement.

Or the Hanford Federal facility agreement and consent order, or the Federal facility agreement with the State of Idaho.

Furthermore, nothing in this section establishes any precedent or is binding on the States of Idaho, Washington, or any other State for the management, storage, treatment, and disposition of radioactive and hazardous materials.

We were stopped this morning from getting unanimous consent-I still do not understand why-we were stopped this morning from getting unanimous consent to put this amendment into the amendment we adopted earlier dealing with the funding stream. That is not going to stop us from moving this language in an amendment and putting it on the bill to make it very clear to anybody who still has any doubt that there is no intention here of creating any kind of precedent or pressure with regard to any other State.

I want to make it very clear we have now provided this language to the desk in the form of an amendment. That amendment will immediately follow the action on this vote with regard to the amendment of the Senator from Washington. Presuming that we still have an opportunity because of the vote, we will proceed with this amendment to make it very clear to anybody who has any lingering doubts that this Congress has no intention and this statutory language is not intended to create any precedential pressure or value, whether it be in court or in legislative negotiations, with regard to how Idaho, Washington, or, frankly, any other State will negotiate with the Department of Energy.

It should be absolutely ironclad clear already, but Senator Craig and I worked with our Governor, and he is supportive of this effort to resolve this issue, and we are going to make it very clear to the Nation that this debate over whether there is some precedential value here is simply a debate that is contrived to object to allowing South Carolina to reach its own solution.

It seems to me as we approach this issue, we must recognize that nothing will happen with regard to the management of radioactive material in the States of Idaho or Washington or, frankly, South Carolina, for that matter, unless and until those States agree. That is why Senator Craig and I have been on this floor advocating States rights and why we will continue to do so.

Senator Craig and I have made a very strong, a very clear position to the administration and to this Congress, which is that our Idaho agreement-which, by the way, was entered into in 1995 and ratified by this Congress-will not be weakened or altered or modified, and that no agreement will be reached on these management issues regarding radioactive materials and hazardous waste unless and until the State of Idaho agrees to that solution. Those two principles are hard rock, base positions Senator Craig and I have made very clear.

Like I say, if there is any question about what the precedent of these proceedings means, the precedent is that Senator Craig and I will not allow-we will not allow-this Congress to move forward with these kinds of issues.

The PRESIDING OFFICER. The Senator from Idaho has used 10 minutes.

Mr. CRAPO. I thank the Senator for this time. I encourage us to support the efforts to make certain these things will move forward and particularly when we bring this amendment that we were not allowed to bring this morning, we encourage the entire Senate to support it to help make this issue crystal clear to anyone who has lingering doubts.

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