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DFP Bill 2017-1: Submit Any Nuclear Waste Disposal to Statewide Vote

Legislature, help me out. Every time I post about the Deep Borehole Field Test—you know, that nice little engineering project to try drilling perfectly straight three-mile holes in bedrock to see if maybe someday the United States Department of Energy might finally, permanently dispose of the nuclear waste we’ve been generating since the Manhattan Project—almost everybody on my blog, right and left, except for nuclear engineer (mad scientist?) Robert McTaggart, says Good God no, they’ll drop nuclear waste down those holes! Despite the assurances of everyone involved that no nuclear waste will be used in the Deep Borehole Field Test—the contract says so!—but on this issue, my readers trust nobody.

As I suggested last spring, the only way to provide voters the guarantee they crave against any placing of nuclear waste in the Borehole is democracy. Toward that end, I beat the New Year’s rush and propose the first Dakota Free Press Bill of 2017, an idea that Donald Pay offered in last year’s discussion of reader-proposed legislation.

Dakota Free Press Bill 2017–01: Submitting Long-Term Nuclear Waste Disposal to a Public Vote

FOR AN ACT ENTITLED, An Act to submit nuclear waste disposal to statewide public vote.


Section 1. No person, corporation, public agency, political subdivision, or other entity may store nuclear waste anywhere in South Dakota without first obtaining a nuclear waste permit from the Department of Environment and Natural Resources.

Section 2. Any entity seeking a nuclear waste permit shall submit an application to the Department of Environment and Natural Resources including the following information:

  1. the source, amount, and composition of nuclear waste to be disposed;
  2. the entity’s plan for containing, disposing, and monitoring the waste;
  3. a description of the disposal site, including exact location and assessment of the geology, hydrology, land usage, cultural and economic features, and other relevant information;
  4. the entity’s plan for remedying any leakage of the nuclear waste into the environment; and,
  5. proof of financial resources to carry out all transportation, disposal, and clean-up activities associated with the plan.

Section 3. All items submitted in relation to a nuclear waste permit are public record from the moment of filing.

Section 4. The Department of Nuclear Waste may reject any nuclear waste application for incompleteness or deficiencies in scientific analysis, engineering, or financing.

Section 5. If the Department of Environment and Natural Resources does not reject a nuclear waste permit application, that application shall be submitted to a statewide vote in the next general election or, if deemed necessary by the Governor, a special election.

Section 6. If a majority of voters approve a nuclear waste permit in a statewide vote, the Department of Environment and Nuclear Waste may issue the permit.

Section 7. An entity receiving a nuclear waste permit must begin its nuclear waste disposal project within four years of certification of the public vote on that permit. If no physical work on the permitted site takes place within four years of issuance, the permit expires.

Section 8. Nuclear waste permits may not be transferred to entities not named in the initial nuclear waste permit application.

Section 9. Approved nuclear waste permits may not be amended. Once approved, a nuclear waste permit applies only to the type, amount, and location of nuclear waste specified in the final application.

Section 10. Whereas, this Act is necessary for the immediate preservation of the public peace, health, or safety, an emergency is hereby declared to exist, and this Act shall be in full force and effect from and after its passage and approval.

Readers, as always, I welcome your amendments.

South Dakotans had this public-vote power over nuclear waste thanks to a voter initiative in 1984. We used it once to reject a nuclear waste dump at Edgemont; then the Legislature took our power away in 1987.

Rep. Lana Greenfield threw political grenades last spring when the Borehole threatened her skeptical constituents in Spink County. Now that the Borehole proposal has moved from District 2 to District 27, will Reps. Elizabeth May and Steve Livermont and Senator Kevin Killer be as attentive to the fears of their Haakon County voters? If so, Rep. May, Rep. Livermont, and Senator Killer, DFP Bill 2017–1 is your first item for the hopper. Give voters the guarantee they crave that no one will sneak nuclear waste into the Boreholes or anywhere else in South Dakota: restore power over nuclear waste to the voters.


  1. grudznick 2016-12-22

    Let grudznick be among the most ardent supporters of this law bill. We must mollify the scientifically ignorant among us, and those that are not #4Science like me and Dr. McT.

  2. grudznick 2016-12-22

    Maybe you need to amend your law bill to define or create the Department of Nuclear Waste since it does probably not now exist and you refer to it several times. We don’t want them creating it by declaring the Philip city counsel is said Department or something like that.

  3. mike from iowa 2016-12-22

    Section 1. No person, corporation, public agency, political subdivision, or other entity may store nuclear waste anywhere in South Dakota without first obtaining a nuclear waste permit from the Department of Environment and Natural Resources.

    Needs a few modifications- DENR of an environmentally friendly, non crony capitalist, non-greedy, non rapacious, Mother Nature loving protect the water, air and Mother Earth Democratic administration with veto proof majorities in the lege and a hand picked Democrat South Dakota Supreme Court and all Democratic federal appeals courts and Scotus. Then, and only then, might this even be considered.

  4. Porter Lansing 2016-12-22

    Let ’em try. It’ll help the little café in Philip, the convenience store and the wholesale fuel dealer. Personally, I don’t think it can be done. The physics aren’t there. I drilled holes in the earth for three years and the deepest we ever went was one mile. It takes exponentially longer the deeper you drill. It gets very hot and the equipment takes a big beating. This hole is supposed to be under construction for what, five years of drilling? We finally got to a mile deep but the hole wasn’t nearly straight enough to drop a solid, cylindrical vessel down without it getting stuck, no matter how much lubrication was used. Our drill pipe bent and leaned so much we feared it would break so we switched to drill pipe half the diameter (only 3.5″), which made progress even slower. The drilling was so tedious I think we repainted the rig four times during the operation. Mostly they’re just drilling to see if they can do it and the nuclear waste story is just a method to get it funded. How else do you get federal money for a scientific experiment, these days? Look at NASA’s funding problems. Scientists have been in a contest for decades to see who can drill the deepest, straightest hole and this is probably just another exploratory experiment. Hey, wait. Isn’t that what it’s being labeled as? Let ’em drill. How often does Federal money come to South Dakota for something harmless like this?

  5. Robert McTaggart 2016-12-22

    If the yardstick is radioactivity, then any measure should address the storage of anything that exceeds what is permitted for release or delivery to landfills. Looks like anything over 5 picoCuries per gram is restricted for free release into the environment or landfills, in general.

    Donald may have pointed us to the following before:

    34-21-1.1. Waste disposal–Approval required–Uranium ore and mine tailings excepted. The containment, disposal, or deposit of high level and nuclear fuel cycle wastes, defense wastes, nuclear wastes, radioactive substances, or radioactively contaminated materials or the processing of high level nuclear wastes may not be established, allowed or permitted within the boundaries of the State of South Dakota, unless prior approval has been granted by the Governor or upon his request the Legislature, except that uranium ore or uranium mine tailings shall not be affected by this section. Low level nuclear wastes may not be disposed of without approval of the department and secretary of environment and natural resources and in accordance with regulations promulgated according to this chapter and chapter 34A-6.

  6. Robert McTaggart 2016-12-22

    I also think that sending something with ten or more sections to voters is a bit cumbersome, as well as developing and funding a whole new Department of Nuclear Waste.

    Better to address the role of a public vote in approving such a facility in the above statute. Perhaps it is the Governor that calls for any public vote for final approval, i.e. that won’t occur until all the other siting and safety issues have been resolved up front to his/her satisfaction.

    What is not in here is what would be necessary to withdraw such a permit, i.e. the state says take your waste and go elsewhere in the future, or to be able to take it out and reprocess it in the future. That is also an issue with consent-based waste disposal.

  7. Robert McTaggart 2016-12-22

    I agree with Porter that they may find out that it isn’t possible today. But this may be one step along the way to improving the technology. Perhaps carbon capture or geothermal end up being the beneficiaries instead….we don’t know yet. But if it can ultimately help with the safe disposal of wastes generated from our nuclear weapons development, that would be an environmental win.

  8. jerry 2016-12-22

    Porter, the deep well at Wasta proved your point beyond doubt. The hole failed and broke way way down there. There was no money to fix it and there it sits, within a danger zone of water way pollution, if it has not done so already. I would add that in order to even consider the drill itself, a $10,000,000.00 dollar cash surety bond by deposited for the guarantee of site work as a stand alone.
    Governor Daugaard has faithfully ignored that well in Wasta as a gift to his drill baby drill, bless his heart.

  9. chris 2016-12-22

    We should definitely use the SD borehole to dispose of the nation’s dangerous dog poop.

  10. Porter Lansing 2016-12-22

    President Trump just announced his dedication to more nuclear energy. He’s often vague about details.

  11. Donald Pay 2016-12-22

    Too busy today at work to dig into this, but here are some initial thoughts.

    The federal Nuclear Waste Policy Act precludes a state directly in having a say on the regulation of disposal or storage of radioactive waste. There is a provision for a state veto, which I believe is exercised by the Governor. However, the Act leaves open the state’s process up to the Governor exercising a veto. So SD could have a state vote that binds the Governor to either veto or not veto. The state veto can be overridden by a vote of both Houses of Congress. That’s how we got Yucca Mountain. No one thinks that was a good way to go, but that’s the current process, since there is no such thing as “consent-based siting” in federal statute.

    Right now “consent-based siting” is recommendation of the Blue Ribbon Commission. It hasn’t been enacted into law, mostly because Congressional Republicans oppose the concept. Thus, it is a fine public relations concept, which the Department of Energy may or may not try to flesh out in regulation. The new Administration will make this decision, but I suspect they could care less about whether states can consent. They are all Tenth Amendment warriors until it affects the money they get from the nuclear industry, but we will see. So far all DOE has done is hold meetings to take testimony and written statements on the concept of consent-based siting.

    That’s for starters.

  12. Robert McTaggart 2016-12-22

    Just dispose of your dog poop so it will wind up in the landfill….the heat will kill the microbes so they cannot get into the water.

    Flushing it (and not the bag you pick it up with) also works…but apparently you should not flush cat poop due to what it carries.

    If you count biological threats to clean water along with chemical threats, dog poop is a much bigger threat than oil spills in terms of volume if not disposed of properly. But there are no dog poop protectors out there apparently.

  13. Robert McTaggart 2016-12-22

    The real problem with Yucca Mountain is that even if it were approved, you may need to start construction on another one soon after that, if not in parallel.

    It is unclear to me whether the supposed cost-effectiveness of direct disposal takes into account the need to construct multiple Yucca Mountain repositories. Reprocessing would reduce the volume and radioactivity of the volume being isolated, as well as the duration of said isolation.

  14. moses6 2016-12-22

    I pick up my dogs poop no problem here.

  15. Robert McTaggart 2016-12-22

    Correction…one dog poop protector ;^)….

  16. caheidelberger Post author | 2016-12-22

    Mike, we’ll handle DENR’s bias by winning elections. For now, it’s the institution available, and under DFP Bill 2017-1, it won’t be able to help any cronies without the approval of South Dakota voters.

  17. caheidelberger Post author | 2016-12-22

    Robert, thank you for citing the existing statute! This bill should definitely refer to and amend the existing statute.

    Note that I’m not talking about submitting these ten sections to a public vote; I’m talking about having the Legislature write these sections into Chapter 34-21. Enact this bill, and what goes before the voters will be a simple one-sentence referred question: “Shall the State of South Dakota permit [applicant name] to store nuclear waste at [location] as outlined in Application [number]?”

  18. caheidelberger Post author | 2016-12-22

    We will definitely not create, let alone fund, an entirely new department. This bill should require zero funding: DENR can take on application review with existing staff and resources.

  19. caheidelberger Post author | 2016-12-22

    Donald, did that federal override power affect our brief referendum power in the 1980s?

  20. Robert McTaggart 2016-12-22

    DOE has been having discussions around the nation regarding consent-based siting….I don’t know if any formal finding has been made yet or any legislation proposed in this regard…but we do need to pay attention.

    We’ll see if approaches generated at the state level are contemplated at the federal level.

  21. Donald Pay 2016-12-22

    Federal override would have affected any decision on high-level radioactive waste. The intent of the 1984 initiative was to have a public vote that dovetailed with federal and state laws already on the books. But, yeah, the feds can basically stick it wherever they want under current law.

    The 1980 initiative, which lost barely, was an outright ban on disposal, nuclear power and uranium mining, and probably would have been ruled unconstitutional since Congress had pre-empted high-level radioactive waste disposal. People got smarter as they went along, but its why you have to be really smart about this.

    That’s why it’s better to keep them out right from the beginning when you have constitutional handles to deny them to drill test boreholes, for example. When it gets to the point where they want to stick a dump in your backyard, they have all the power, and you have very little.

  22. Robert McTaggart 2016-12-22

    But they were not able to put any into Yucca Mountain. Sounds like opposition was fairly successful there.

  23. Donald Pay 2016-12-22

    Nevada didn’t have a sell-out Governor and weak-kneed Senators. We’re talking here about people having power, because you can’t trust your leadership (other than maybe Noem?) to carry on the fight. Nevada had strong bi-partisan opposition, plus they had the Senate Majority/Minority Leaders working against it (both Daschle and Reid were strongly opposed). (My experience with Democrats in SD is that they oppose corruption in general, but when it comes to specific corrupt projects, some of them will fall all over themselves to support it.) Thune could flex his leadership muscles and straighten out the whole mess, but he’s never been someone who stands up for South Dakota against these particular special interests.

  24. jerry 2016-12-22

    Cory notes that this is in District 27, what do the representatives from there say about this?

  25. John 2016-12-22

    Hey, so long as the waste is in a watershed above Pierre, we should be all-in. Just sayin’. A watershed below Pierre – and it’s an automatic no-go for evading the potential consequence of a potential very bad decision. Walk-the-talk or bunt.

  26. grudznick 2016-12-22

    Interesting that cat poop is less ecologically sound than dog poop.

  27. jerry 2016-12-22

    Mr. Grudznick, what is known is the known that cats cover up their poop while dogs enjoy the thought of humans stepping on their’s.

  28. grudznick 2016-12-22

    I don’t know that we know that dogs enjoy that thought, Mr. jerry, but we do know they don’t cover their poops and that those poops are often wetter and larger than cat poops. And that we step or roll through them in the park when the slackards don’t pick up the poops.

  29. caheidelberger Post author | 2016-12-23

    Jerry, I’ll e-mail and find out!

    John, if any legislation comes up, we should definitely remind the legislators at the committee table where the water in their cups comes from. (Wait—does Pierre draw its water supply from the Bad River or the Cheyenne-fed Missouri?)

    Donald’s point about federal override helps me tolerate opposition to the borehole. Even if we trust the assurances of every person and agency involved with the Borehole that this project will not bring any nuclear waste to South Dakota, opponents of nuclear waste should not wait to signal their opposition to nuclear waste until an actual dump is proposed. They need to use a research project like this as the vehicle for their protest so that when the DOE formulates a proposal for an actual dump, they’ll say, “Gee whiz, remember how hard it was to get folks in South Dakota to agree to merely drilling those two holes? They’ll probably secede if we try to move any nuclear waste there. Let’s not put South Dakota at the top of our nuclear-waste-site list.”

    Of course, with Rick Perry running DOE, won’t all the nuclear waste go to Texas? :-)

  30. Robert McTaggart 2016-12-23

    Opposition to an unsafe means of storing nuclear waste is warranted. But if the means of nuclear waste disposal have been proven to be safe (like on the order of the consensus that we believe humans are impacting the climate), then outright rejection is counterproductive to the ultimate goal of clean water and soil.

    That includes operations like temporary above ground storage, permanent underground storage, or even reprocessing to reduce the amount that requires isolation. If you are looking for absolute zero risk, then please apply that to all forms of energy production equally…..I am confident that will result in no energy being produced for anyone, nuclear or not. Reduced risk is attainable, zero risk is not.

    Safety should be a high hurdle. Thus opposition is better channeled through the constructive questioning of analyses or practices or conclusions. Volunteer your time to sit on the various review panels and public meetings that will occur.

  31. Robert McTaggart 2016-12-23

    I am not sure if Perry would oversee the decision regarding the borehole due to a potential conflict of interest. You want the site that best fits the desired characteristics for the initial test, whether that is in Texas or not.

  32. Donald Pay 2016-12-23

    Daugaard and other supporters don’t understand this is really a trap, given current law. Everyone is proceeding under the assumption that consent-based siting is law. It isn’t. Congress has refused to enact the mostly good reforms proposed by the Blue Ribbon Commission. There is no independent agency made up mostly of scientists to guide this research and there is no consent-based siting. We are working under the 1982 law which ended up with the “screw Nevada bill” and the override of Nevada’s veto. The borehole test sounds innocuous, and they are trying to be solicitous at this point to local opinion. Once they get their nose under the tent, they won’t be talking about consent. It will be rape.

    Daugaard thinks he can just say opposed to disposal of radioactive waste and that’s it. Uh-uh. That’s not it at all. If Daugaard wants t actually lead on this issue, he would withdraw his support for the borehole test until such time as Congress acts to enact the reforms of the Blue Ribbon Commission. And maybe such a moratorium would be something Legislators could go for. It wouldn’t be a total “NO” to the borehole, but it would be saying, “Change the laws now so we can say no down the road.”

  33. Robert McTaggart 2016-12-23

    Unfortunately that by itself would not change anything. There are 3 other sites that would gladly accept the funding for this research. And of course, the DOE is on record that no waste would be used in this testing and that the boreholes would be filled.

    Any other proposal for nuclear waste storage would go through another process and local/state regulatory approval, if not the end result of the current DOE deliberations regarding consent. DOE may not require an act of Congress to pursue their desired intent for consent-based processes.

    Lessons from the failure of Yucca Mountain (which once again is still covered by the same federal rules you worry about) are being addressed. The waste needs to be isolated, the means need to be safe, and the host community needs to be on-board.

  34. Donald Pay 2016-12-23

    Well, sure, DOE set this round of proposal up to see which Governor is going to go down to his/her knees. They found out in ND that having one Governor throw a monkey wrench into their plans was a bad idea. The fact that they had Daugaard out there (and others) made them start hedging a bit.

    But one state recognizing what game is being played here sends a huge message. Huge. If Daugaard wants to lead and change federal policy for the better, he has huge leverage at this point. He will be leaving the next Governor with little leverage.

  35. Robert McTaggart 2016-12-23

    At the end of the day it is up to all of us to make consent-based siting work if our nuclear waste issues are to be solved. Primarily because you especially do not want the other kind of siting to occur.

    Part of that is making sure all the t’s are crossed and the i’s dotted with the engineering, which is what this test is about. Trust but verify is OK in this case.

    But if a spent fuel repository (which the test borehole is not….once again and again) were ever approved in South Dakota, that would mean the site has the correct characteristics, the methodologies have been proven safe, and the host community would have approved it.

  36. Douglas Wiken 2016-12-23

    There must be some places in the US without aquifers to complicate storage. Or, find a desert where nothing lives and put the concrete containers in shallow trenches. Instead of spending billions on expensive holes that endanger water resources, spend some money on guards to police the area. Or move the Gitmo prisoners to the US and the nuclear waste to Cuba…not serious about that one.

  37. Robert McTaggart 2016-12-23

    Not sure you can say that they endanger water resources until you actually drill one this deep in this combination of hydrology and geology. If this military waste stays put for thousands of years deep underground, nothing will get to water sources.

    But yes, an alternative is to have a near-ground repository. In particular, if we end up isolating waste from the once-through fuel cycle and decide later to reprocess that fuel, or to remove it and place it somewhere else, retrievability becomes important. You could place this waste in the same facility, but the heat and radiation levels would be different….so the storage requirements may change a little.

  38. Donald Pay 2016-12-23

    I’ve been looking for any statutory authority from Congress for a deep borehole disposal test and can’t find any. There apparently is no authority from Congress for this test, just as there is no authority for the consent-based siting that DOE has undertaken. I have seen testimony by Moniz for appropriations, but no clear line item for this test. Meanwhile there are Congressional committees that are highly skeptical of much of what DOE is doing in the area of radioactive waste disposal.

  39. Robert McTaggart 2016-12-23

    Looks like Congress is doing their job and asking the right questions.

    They may need to change some legislation if they do not want nuclear waste management to go through Yucca Mountain first (i.e. a license for a temporary facility cannot happen prior to one for Yucca Mountain).

    They requested information about the failed ND effort for deep borehole disposal…this was just prior to the Spink County effort.

  40. caheidelberger Post author | 2016-12-23

    Robert, do you think the incoming administration is going to worry about conflicts of interest? ;-)

  41. Robert McTaggart 2016-12-24

    Trump is settling some of his lawsuits before taking office…so there is a chance.

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