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concerning the designation of a site within its borders. This last requirement had broad support within the Senate, including from key members of the Senate Armed Services Committee, which did not object to such state provisions in floor debate.

Although the Armed Services Committee did object to the requirement for a Presidential decision on whether to include military waste in the siting rules of S.1662, its objection was overwhelmingly rejected by the full Senate. Much of the Armed Services argument was based on the need to avoid making a premature decision on whether military and commercial wastes should be commingled in the same repository. However, that it is clearly not the question of most importance for this Committee. The real question is whether there is any valid reason not to include military waste in the same repository siting system established by the bill for commercial waste. Whether or not the wastes actually end up in the same repository is far less important than establishing a unified siting program with no double standards for defense waste, and insuring that no state will have to face the kind of double jeopardy in which the military might decide to make use of a repository site that had previously been rejected by a civilian program operating under more stringent ground rules.

The objective of siting all high level nuclear waste repositories by a single set of ground rules could be accomplished, without prejudging whether defense and commercial wastes should be physically commingled, by a simple requirement that all licensed repositories be sited according to the siting and state review rules established by the bill.

4. LICENSING REQUIREMENTS FOR FINAL REPOSITORIES. The licensing process, more than any other element of the waste management program, will be the crucible where federal decisions and siting choices will be tested and public confidence in the waste program and in a particular site and design will be either reinforced or broken.

It is fortunate, therefore, that the licensing provisions

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included in Mr. Broyhill's draft legislation which was circulated last October have been dropped from the more recent discussions of the Subcommittee. Since these provisions are not currently pending before the Subcommittee, I will not comment on them in detail, except to say that their adoption in law would eliminate any possibility that a licensing procedure so amended could provide a convincing demonstration to the public at large of the reasons for confidence in a particular site, repository design, or the DOE program in general.

In testimony last October 7 before the House Subcommittee on Energy Research and Production, I submitted detailed comments on similar licensing proposals which were contained in legislation before that Committee. I would be glad to offer those comments for the use of this Subcommittee if they would prove helpful in its deliberations.

5. THE 'MCCLURE AMENDMENT' AND THE RESOLUTION OF THE WASTE PROBLEM. I would like to close my testimony today with a brief discussion of a new and controversial issue which arose in connection with the floor consideration of S.1662. In the waning hours of that debate, Chairman McClure inserted an amendment in the Senate bill which will, if enacted into law, have consequences of the most sweeping kind, not only for the nuclear waste program, but for the exercise of traditional state prerogatives in the regulation of energy facilities generally.

Although the McClure Amendment was presented as a "legal and clarifying amendment," and was inserted into the bill unread and unexamined, it would override the energy facility siting laws of at least five states, and would force immediate judgments favoring the nuclear industry in the so-called "Waste Confidence Proceeding" before the Nuclear Regulatory Commission and two court cases, one pending before the Supreme Court.

The Sierra Club has a particular interest in the McClure Amendment because, along with over 20 states and several other public interest organizations, we are participants in the lawsuit currently

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pending before the Supreme Court (Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, 659 F. 2d (9th Circuit 1981)) in which the State of California is defending a six-year-old law which restricts the siting of new nuclear powerplants within the state until such time as the federal government puts in place a demonstrated solution to the disposition of nuclear waste.

The McClure Amendment simply declares that the passage of S.1662 solves the nuclear waste problem, and that the Congressional declaration of such a solution should be construed in any federal, state, or local court or proceeding to satisfy any requirement for the safe disposal of nuclear waste.

Aside from being absurd on its face, such a declaration smacks of the old children's game: "If I say it three times, it's true." It is the equivalent of a legislative declaration attached to a NASA Authorization that, for all legal purposes, we now have a man on Mars. Had it been introduced and discussed in the light of day, there is a good possibility that it would have been laughed off the Senate floor.

Yet I would urge this Committee, and the House Conferees on this legislation, to view the McClure Amendment with great seriousness, because it has enormous implications for the traditional obligations of states to regulate energy development and provide for the protection of the health and safety of their citizens. The states which passed the siting laws which would be bulldozed away by this hasty legislative handiwork California, Maryland, Oregon, Connecticut, and Maine, at the minimum, were concerned to restrict the further siting of nuclear powerplants until such time as a demonstrated, safe method of disposing of nuclear waste was put in place by the federal government. No declaration of Congressional policy, nor any mere legislative solution, no matter how promising it may seem, can substitute for the actual development of that program.

In its consideration of nuclear waste legislation, I would urge this Committee to eliminate any language which would have the effect of undermining the obligation of the courts, the NRC, or the individual states to assure themselves, in the appropriate context, that the nuclear waste disposal problem has indeed been resolved. I would also urge the House, in convening any conference with the Senate this issue, to make its first priority the elimination of the lure language from any further consideration by the Congress.

Thank you for your letter of December 2, 1981 regarding the Department's effort to develop the appropriate technology to dispose of our nation's high-level nuclear waste.

In your letter, you have requested that we provide you with the time required to complete a national site program that would bring potential Salina Basin salt formations and granitic formations to a pre-site characterization phase. At this time, we are in the early phases of reviewing the geologic literature necessary to screen granitic formations in 17 states in order to determine those formations with the potential for future studies. Our schedule at this time calls for those studies to reach a site characterization phase (exploratory shaft) in fiscal year 1988. At this time, we have made no plans to reactivate Salina Basin studies. We, therefore, do not have all the data immediately accessible to answer your specific request.

We hope that this reply will serve as an interim response to your questions until we are able to develop the information necessary to respond to your request. We anticipate that we will require another three-to-four weeks to answer you more completely.

Thank you for your interest in this vital national issue.

Sincerely,

Robert C. Odle, Jr.
Assistant Secretary for
Congressional, Intergovernmental

and Public Affairs