LESS THAN TWO MONTHS EARLIER WAS A RESULT OF THE STATE'S FRUSTRATION WITH DOE IN ITS ATTEMPTS TO OBTAIN ADEQUATE RESPONSES TO RELEVANT CONCERNS AND UNRESOLVED ISSUES SURROUNDING WIPP.

UNDERSTANDABLY, THEN, THE STATE OF NEW MEXICO IS EXTREMELY SKEPTICAL ABOUT DOE'S ABILITY TO ADDRESS AND INCORPORATE THE STATE'S AND PUBLIC'S COMMENTS ON THE SPDV INTO ITS DECISION-MAKING PROCESS, AND THEN TO IMPARTIALLY EVALUATE THE SUITABILITY OF THE WIPP SITE. THE STATE WILL NOT NECESSARILY CONSIDER JUST ANY RESPONSE ADEQUATE. THEREFORE, IT IS IMPORTANT TO POINT OUT TO THIS SUBCOMMITTEE THAT THE DECISION TO PROCEED WITH THE CONSTRUCTION OF THE FULL WIPP FACILITY HAS NOT YET BEEN MADE.

BECAUSE OF THIS, THE STATE OF NEW MEXICO BELIEVES THAT ANY BLM/DEPARTMENT OF INTERIOR DECISION ON THE CURRENT LAND WITHDRAWAL AT THIS TIME IS PREMATURE AND INAPPROPRIATE.

THE DOE FILED ITS APPLICATION WITH THE BLM FOR THE WITHDRAWAL OF 10,240 ACRES, INCLUDING 1,280 ACRES OF STATE TRUST LAND, ON JANUARY 17, 1983. THE WITHDRAWAL IS FOR THE PURPOSE "OF CONSTRUCTING...THE WIPP". AN EXISTING PUBLIC LAND ORDER AND MEMORANDUM OF UNDERSTANDING INVOLVING THAT SAME ACREAGE REMAINS EFFECTIVE UNTIL MARCH 30, 1990. HOWEVER, THAT ORDER PERTAINS ONLY TO THE DOE CONDUCTING "AN SPDV PROGRAM IN CONNECTION WITH THE WIPP PROJECT".

THUS, DOE SEEKS BLM'S APPROVAL ON THE PENDING LAND WITHDRAWAL APPLICATION IN ORDER TO MOVE FROM THE SPDV PHASE TO THE CONSTRUCTION PHASE. HOWEVER, AN "OFFICIAL" DECISION TO PROCEED WITH THE FULL CONSTRUCTION OF THE WIPP FACILITY HAS NOT BEEN MADE. IN FACT, COMMENTS ON THE DOE SPDV SUMMARY REPORT MAY STILL BE RECIEVED THROUGH MAY 31, 1983. ONLY AFTER CONSIDERING AND RE- ii

SPONDING TO THOSE COMMENTS CAN THE DOE ISSUE ITS DECISION.

THEREFORE, BECAUSE THE SUITABILITY OF THE WIPP SITE FOR THE RADIOACTIVE WASTE DISPOSAL HAS NOT YET BEEN DETERMINED, THE STATE OF NEW MEXICO STRONGLY OPPOSES THE ISSUANCE OF OF A BLM DECISION ON THE DOE LAND WITHDRAWAL APPLICATION. SIMPLY PUT,

SUCH A DECISION WOULD BE PREMATURE.

BOTH THE BLM AND THE DOE APPEAR TO AGREE THAT A CONGRESSIONAL LAND WITHDRAWAL IS REQUIRED PRIOR TO THE STORAGE OR DISPOSAL OF RADIOACTIVE WASTE AT WIPP. YET A DECISION NOW TO CONSTRUCT THE FACILITY WOULD BE LARGELY THE SAME AS DECIDING TO EMPLACE WASTE IN THE FACILITY, AS FAR AS THE LAND WITHDRAWAL IS

CONCERNED.

BARRING SOME MAJOR CATASTROPHE, ONCE THE FACILITY IS BUILT, MOST PEOPLE ARE GOING TO BE PREPARED AT THAT POINT TO TRY PUTTING SOME WASTE IN IT.

YET WHEN THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 (FLPMA) WAS ENACTED, CONGRESS CLEARLY INTENDED TO INSURE THAT DECISIONS TO DEDICATE FEDERAL LAND TO ANY EXCLUSIVE USE, SUCH AS WILL BE THE CASE WITH WIPP, FOR MORE THAN 20 YEARS, WOULD BE THE SOLE PREROGATIVE OF CONGRESS. THE DOE IS CURRENTLY TRYING TO PRESENT EACH PHASE OF WIPP AS A SEPARATE PROJECT, WITH EACH PHASE HAVING NO IMPACT ON THE NEXT PHASE, SO THEY DO NOT HAVE TO ASK FOR A LEGISLATIVE WITHDRAWAL YET. THE FACT IS, THOUGH, THAT ALL THE PHASES OF THE WIPP PROJECT ARE RELATED AND INTERCONNECTED. A DECISION TO CONSTRUCT NOW WILL INFLUENCE A DECISION TO EMPLACE WASTE SEVERAL YEARS FROM NOW, AFTER A BILLION DOLLARS HAVE BEEN SPENT. IT APPEARS TO US THAT THE DOE APPROACH TO THE LAND WITHDRAWAL ISSUE IS INCONSISTENT WITH THE CONGRESSIONAL INTENT OF FLPMA, BY SETTING IN MOTION A PROCESS WHICH TENDS TO CIRCUMVENT - iii

MEANINGFUL CONGRESSIONAL REVIEW AND PUBLIC CONSIDERATION PRIOR

TO CONSTRUCTION OF WIPP.

CONGRESSIONAL REVIEW OF THIS LAND WITHDRAWAL IS EVEN MORE IMPORTANT GIVEN NEW MEXICO'S EXCLUSION FROM THE NUCLEAR WASTE POLICY ACT OF 1982, WHICH GAVE ALL OTHER STATES VETO POWER OVER POTENTIAL WASTE REPOSITORIES, SUBJECT TO A TWO-HOUSE OVERRIDE BY CONGRESS.

SINCE NEW MEXICO HAS NO SUCH POWER TO VETO WIPP, THE IMPORTANCE OF CONGRESS TAKING ACTION NOW ON THE DOE LAND WITHDRAWAL

IF THE BLM IS ALLOWED TO

APPLICATION CANNOT BE OVER-EMPHASIZED.
PROCEED IN MAKING A DETERMINATION ON THE WITHDRAWAL APPLICATION,
THEN THE WIPP PROJECT WILL LIKELY CONTINUE INTO PERMANENT FACILITY
CONSTRUCTION. BY THE TIME THE LAND WITHDRAWAL ISSUE IS BROUGHT
BEFORE CONGRESS SEVERAL YEARS FROM NOW, HUNDREDS OF MILLIONS OF
DOLLARS WILL HAVE ALREADY BEEN SPENT ON CONSTRUCTING WIPP. ANY
SUBSEQUENT CONGRESSIONAL DECISION WOULD PROBABLY BE INFLUENCED
BY SUCH A SIZEABLE INVESTMENT OF FEDERAL FUNDS AND BY THE MOMEN-
TUM OF THE PROJECT ITSELF. FOR THESE REASONS, THE STATE BELIEVES
THAT NOW IS THE TIME FOR CONGRESSIONAL INTERVENTION, AND URGES
CONGRESS TO ACT PRIOR TO A BLM DECISION ON DOE'S LAND WITHDRAWAL

APPLICATION.

THERE ARE AT LEAST TWO OTHER IMPORTANT REASONS WHY THE DOE LAND WITHDRAWAL FOR WIPP SHOULD BE LEGISLATIVE AND NOT ADMINISTRATIVE. THE FIRST ONE IS THAT THE DOE APPLICATION DIRECTLY RELATES TO THE "MULTIPLE USE CONCEPT" AS APPLIED TO PUBLIC LANDS. THE DEPARTMENT OF INTERIOR, INCLUDING BLM, HAD A STATUTORY OBLIGATION UNDER THE CLASSIFICATION AND MULTIPLE USE ACT OF 1964 (NOW EXPIRED), AND PRESENTLY CONTINUES TO HAVE UNDER THE FLPMA OF 1976, - iv

A STATUTORY OBLIGATION TO APPLY THE CONCEPT OF MULTIPLE USE IN MANAGEMENT OF PUBLIC LANDS. SUSTAINED WITHDRAWAL, IF

THE

GRANTED, MAY BE INCONSISTENT WITH THE PRECEDING REQUIRED MANAGEMENT PRACTICES. THIS IS A MATTER THAT CONGRESS SHOULD CONSIDER. THE SECOND CONCERN THAT INVOLVES BOTH THE DOE AND THE BLM INVOLVES THE SIGNIFICANT QUANTITIES OF MINERAL RESOURCES UNDERLYING THE WIPP SITE. PREVIOUS ESTIMATES OF POTASH AND HYDROCARBON RESERVES AND RESOURCES BELOW THE SITE ARE INADEQUATE TO PROJECT FOREGONE REVENUES AND EMPLOYMENT RESULTING FROM THE PROPOSED LAND WITHDRAWAL. THIS, IN TURN, PREVENTS THE STATE FROM DETERMINING APPROPRIATE LEVELS OF COMPENSATION FOR THESE UNTIL THESE ESTIMATES ARE QUANTIFIED MORE SPECIFICALLY, TO THE STATE'S SATISFACTION, A DECISION ON THE PENDING DOE WITHDRAWAL APPLICATION SHOULD NOT BE MADE.

LOSSES.

AT THIS POINT, IT APPEARS THAT THE WIPP SITE CONFLICTS WITH THE QUALITATIVE EPA DRAFT SITE CRITERION FOR NATURAL RESOURCES. WE REALIZE, OF COURSE, THAT THIS CRITERION MAY CHANGE. NEVERTHELESS, WE DO NOT FEEL THAT THE BLM SHOULD WITHDRAW THIS LAND ADMINISTRATIVELY WHEN THIS CONFLICT MAY EXIST. CONGRESS SHOULD DECIDE WHETHER THE POTENTIAL BENEFITS OF WIPP EXCEED THE LOSSES AND DANGERS POSED BY THESE SUBSTANTIAL RESOURCE DEPOSITS AT THE SITE NOT THE DEPARTMENT OF INTERIOR. (WE WILL CONSIDER IT AN IRONIC TURN OF EVENTS IF THE DEPARTMENT OF INTERIOR, HERETOFORE SO EMPHATICALLY CONCERNED WITH GETTING ALL THE RESOURCES IT CAN OUT OF THE GROUND AS QUICKLY AS POSSIBLE, DECIDES THAT THESE PARTICULAR RESOURCES MAY AS WELL BE LEFT IN THE GROUND FOR ETER

NITY.)

Attachment 3

Appendix B:

The following 13 pages are the "Comment of the Attorney General
of the State of New Mexico on the Department of Energy's Land
Withdrawal Application".

Governor Anaya asks that the Subcommittee pay particular attention

to the Attorney General's comments on pages 1-7, and on pages 11-13.

Thank you.