Guest History: South Dakota’s Nuclear Waste War Explodes in the 1983 Legislature

by Donald Pay

Forty years ago a multi-national waste management company sought to bury South Dakota in the nation’s low-level radioactive waste. Governor William Janklow proposed to join the Midwest Low-Level Radioactive Waste Compact. Citizens organized to fight these interconnected issues. This is the third installment in a series following the years-long controversy over nuclear waste in South Dakota. The first two installments can be seen here and here. Some of the links in this installment are to newstories archived by newspapers.com, which can be read with a week’s free access or through payment.

From his house adjacent to Hilger’s Gulch in Pierre, State Senator Homer Harding, a conservative Republican, had a 10-minute walk to the Capitol Building. The gulch in the 1980s consisted of some small patches where native prairie and plants adapted to alkali soils barely survived in a sea of invading non-native bromegrass. It was a wasteland that served as a dumpsite for snow during most winters and a parking spot for heavy equipment in the summer.

Senator Harding, as Majority Leader, cut a dapper figure as he oversaw what some viewed as another Pierre wasteland, the South Dakota State Senate. Harding, a high-ranking member of the South Dakota Guard and owner of a Pierre Ford dealership, ran a top down caucus, where subservient male Republicans took orders from elite lobbyists or the brash, bossy Governor Janklow. There were a few Republican Senators, like Don Frankenfeld (R-Rapid City), who cut against the grain—they thought for themselves, whether that was for good or bad. The Senate’s minority Democrats would do their best to buck the system Harding oversaw, but with only 9 members of the 35-seat body, they didn’t have much power.

As Senator Harding geared up for the 1983 legislative session, fiscal matters loomed much more ominously than the usual, but this year absent blizzards that buffeted Pierre a couple times during legislative sessions. A bad agricultural economy, the result of a two-year drought, too much debt, too low commodity prices, too high interest rates and too many farm foreclosures, smacked ranchers and farmers all at once, and the blowback hit the state budget. The Governor’s budget address in December 1982 foreshadowed a stringent budget, but big cuts, he said, were not needed if he continued to roll over money not spent from the previous year, a practice that irked the small Democratic caucus.

The crisis hitting agriculture was nationwide, but Midwest states felt it most. Farm groups and political leaders from rural areas floated different ideas to address a plethora of economic maladies. In 1982 South Dakota Governor Janklow vetoed a bill to ease agricultural lending. The Legislature didn’t override that veto, but a worsening ag lending problem put the pressure on Janklow to come up with an alternative in 1983, because a bad economic situation had lit the fuse of extremism across the Midwest. A few tax protesters turned violent.

Water development continued to be a hot topic in South Dakota. Janklow had his priorities, but not enough money to fund all of them. United Family Farmers, the South Dakota Resources Coalition and the South Dakota Wildlife Federation would face off against some of Janklow’s priorities, while the South Dakota Water Congress, run by Judy Harringtion, a former staffer with Senator George McGovern, would lobby for them. A rarity in the Legislature, water development projects had bipartisan support and bipartisan opposition, which shifted based on the particular project being discussed.

Changes to water rights laws, which concerned West River ranchers, municipalities, and irrigators, were outlined in the first three House bills pre-filed in 1983. Attorney General Mark Meirehenry had sued South Dakota water rights holders in 1980, and anyone who held these rights was extremely skittish to downright mad about what state leaders were up to. Several ranchers and their attorney, Jacky Huber, stopped by our house in Pierre when they were in town on water rights business. Huber, at the time, was in a relationship with Randy Brich, who spearheaded nuclear matters for the Department of Water and Natural Resources. South Dakota is a small world after all.

The announcement by Chem-Nuclear Systems, Inc., in late 1982 that they had been invited to consider the former Black Hills Ordnance Depot as a potential low-level radioactive waste dump site raised the stakes on the nuclear waste issue in South Dakota. In January 1983 Chem-Nuclear officials met with officials in the Department of Water and Natural Resources to inform them officially of their plans. Janklow still maintained he was opposed “in general” to nuclear waste disposal in South Dakota, but there was no record of what was communicated to K.C. Aly, a spokesman for Chem-Nuclear. Aly indicated his company would soon open offices in Edgemont and conduct various tests at the Depot, beginning in April. In late January 1983, Chem-Nuclear’s director of corporate development stated the company planned to meet with firms in Rapid City to discuss preliminary earth work at the Black Hills Ordnance Depot.

Meanwhile, Janklow’s interests, and most of his attention, had wandered to new schemes cooked up by large out-of-state financial interests. His original foray into financial matters in 1981 had jettisoned limits on usury and the result was the first hints of the coming boom in jobs in the financial sector in Sioux Falls and Rapid City. He wanted to cash in on other schemes the East Coast bankers were suggesting.

Selling off state assets, like the State Cement Plant or the Dakota Dome, to investors and then leasing them back, called sale-leaseback, was the latest financial scheme that Janklow wanted the legislature to approve. Another scheme cooked up by financial hotshots was to allow national bank holding companies to obtain a state bank charter so they could buy up national insurance companies, an end run against federal regulations that separated insurance and banking. That was supposed to be another route to siphon off more jobs from the East Coast-based financial industry.

With all that on his plate, Janklow fobbed off nuclear waste compact matters to Bob Neufeld, his bumbling Secretary of the Department of Water and Natural Resources. Sporting  a mustache that looked like a cross between Adolph Hitler’s and Inspector Clouseau’s, Neufeld was supposed to ramrod the Midwest Low-Level Radioactive Waste Compact through the South Dakota legislative process.

The Technical Information Project found itself at the hub of a loose coalition of grassroots citizen groups trying to tease out an approach to the nuclear waste issue. It was not at all clear how Chem-Nuclear’s involvement would affect the effort to join a low-level radioactive waste compact with other states, but it energized the interest of citizens from across the state. Because there had been such secrecy, duplicity and official backtracking involved in the developments on the nuclear waste issue in 1982, citizens were not willing to take state government officials’ statements on the issue at face value.

The Technical Information Project’s October 1982 Memo served as a starting point for a citizens’ legislative strategy in 1983. There were three already negotiated compacts that South Dakota could join, yet South Dakota officials were only considering one of them, the Midwest States Low-Level Radioactive Waste Compact. Further, there was no immediate requirement to join a compact. South Dakota could take a year to further study the existing compacts to weigh the pros and cons of each, to negotiate a two-state compact with North Dakota, or to consider a go-it-alone option without joining a compact.

Whatever happened on the nuclear waste issue during the legislative session would need to be tracked and lobbied. The Technical Information Project was not a lobbying organization. Rather, its mission was to encourage the broadest possible discussion of issues before decisions were made. TIP’s Deb Rogers would not serve as a lobbyist, though she did testify at legislative committees. The organization steered a middle course, digging through technical reports, scientific articles and legal documents on environmental and economic development issues to provide information to the public. Because Rogers stuck to factual issues, she had considerable credibility with legislators.

Others would have to pick up the lobbying effort. Jay Davis, the lobbyist for United Family Farmers, overnighted for several sessions in the early 1980s in the spare room of the big barn house Deb Rogers and I rented in Pierre. Although the Oahe Irrigation Project was dead, UFF still had issues it was pursuing, the big ones being getting the WEB Rural Water Pipeline fully funded and built, and watchdogging the CENDAK Irrigation Project proposed for central South Dakota and Janklow’s pet Garrison Extension Project, which would have ruined the James River. Davis spilled what he was hearing about the nuclear waste issue as he circulated around the Capitol Building’s Third Floor lobbyist haunts.

A decision of the Black Hills Energy Coalition to sit out the nuclear waste issue for the moment concerned Jan Stites, who worked for the Black Hills Alliance. The two groups had an uneasy relationship. The Alliance mostly worked outside the system through protests or inside the system through administrative appeals and lawsuits. The Energy Coalition worked through grassroots organizing and the political system. Stites began to engage on the nuclear waste issue, taking the Alliance on a new path.

The Alliance had always had great media draw with Russell Means heading the organization. Means, though, separated from the Alliance as he moved toward his third campaign for Chairman of the tribal government on the Pine Ridge Reservation. Stites led the first efforts to bring greater awareness of the nuclear waste issue to West River, using press releases and letters to the editor to drum up West River concern on the issue. West River rancher Marvin Kammerer joined in this effort. Patty Swallow of the Alliance worked with tribal governments to inform them of the issue.

Citizens in Fall River County cobbled together the remains of a group that a couple years earlier had won a victory over a company that proposed to construct a hazardous waste dump at the former Black Hills Ordnance Depot. It was the same area that Chem-Nuclear would be exploring for their dumpsite. The Edgemont contingent of that informal group split off from the more rural folks, as did many of the Hot Springs folks, as they now actively supported Chem-Nuclear’s proposal. Still, rural residents, especially those closest to the Ordnance Depot, were determined to fight development that was inconsistent with their way of life. Among the first to become involved were Lanoir Pederson, the long-time postmistress at Igloo, Ruth Kern, a rancher with deep ties to the South Dakota Republican Party, Howard Henderson, who managed a ranch near the Depot, and a young organic farmer from Ardmore, Ray Lautenschlager, who would make the long drive from Ardmore to Pierre to testify and serve as a lobbyist for his group of Fall River. Lautenschlager was conservative and was able to reach some of the more conservative legislators.

The South Dakota League of Women Voters had been studying the nuclear waste compact issue from the beginning of the controversy in 1982. The National League of Women Voters served as a liaison between the federal government and citizens groups to support compact formation on low-level radioactive waste matters. The National League was urging states to join compacts in 1983. The South Dakota Chapter deviated from that cheerleader approach, suggesting that South Dakota leaders take some time to study the matter before making a decision. The South Dakota League at this time had very active leadership in several chapters across the state, working on all sorts of issues. The Sioux Falls group had successfully joined a 1982 initiative on redistricting legislative districts in Minnehaha County, and would become particularly active on the nuclear waste issue. League chapters in Aberdeen, Clay County and Rapid City were also concerned.

Esther Edie, the veteran lobbyist for the South Dakota Resources Coalition, was back for the 1983 session. She had run for a state Senate position as a Democrat in 1982, and lost. It was not known if her loss would hurt her lobbying credibility, but after nearly a decade of experience, she was the dean of environmental lobbyists with long relationships with legislators and an effective grassroots lobbying network. Edie used a weekly newsletter sent out during session to drive grassroots citizens to legislative coffees and crackerbarrels and urge letters to legislators and newspapers. Edie added the Midwest Compact issue to a long list of issues she was tracking.

I was now 5 months into a stint as a state employee and up to my elbows in cattle blood. The annual winter cattle run began with a trickle in October and cranked up by December. As the 1983 legislative session began in the second week of January, the cows being sold or slaughtered in South Dakota would reach thousands per day. The bad economy and the drought swelled the cattle run, and the flood from the blood draws of those cattle needed to be tested. As a state employee, I could not lobby, but I could provide testimony as a concerned citizen, if I could attend an occasional night hearing. I spent most evenings and weekends on other issues, writing administrative appeals on uranium mining permitting at state and federal levels, and the appeals of various decisions by the federal Bureau of Land Management on the ETSI project. I did, however, spend some time searching cases and information on nuclear waste matters at the Supreme Court law library in the Capitol Building and the State Library on the opposite side of Hilger’s Gulch from Sen. Harding’s home.

The Governor’s bill to enact the Midwest Low-Level Radioactive Waste Compact (SB 248) was introduced on February 1 along with several other “Governor’s bills.” This was not unexpected, but another bill introduced by Senator Doris Miner (D-Gregory) seemed to catch state officials off-guard.

The Midwest Compact bill was 22 pages of complexity. It consisted of the entire text of the Midwest Compact, negotiated by the various Midwestern states. A requirement of both federal statute and the Midwest Compact itself was that states pass the exact language negotiated by states to show acquiescence of each state giving up some of its power to the Compact Commission. These compacts also needed approval by the Congress of the United States.

The Midwest Compact provision that created the most controversy involved a dicy question: who made the decision designating which state would host a radioactive waste dump. Governor Janklow insisted that he made that decision for South Dakota. The Midwest Compact designated the Compact Commission as the entity that made that decision, displacing any right of a state official or its citizens to decide the matter. If a state was selected by the Compact Commission to host a facility, that state was obligated to do so. A state could regulate the site in some ways, although the federal Nuclear Regulatory Commission would set the baseline on anything dealing with radiological matters, but it could not veto the facility.

In contrast to the Midwest Compact bill, Miner’s bill was a simple one-page affair aimed right at the weakest point of the Midwest Compact: the Legislature would have to vote to approve any radioactive waste site in South Dakota, thus giving South Dakotans, not the compact commission, the final say on any decision to host a radioactive waste site.

That brevity suited the friendly, but straight-to-the-point Senator Miner, who walked with a limp from a congenital hip condition. Diagnosed a few years earlier with multiple sclerosis, Miner had escaped most of the debilitating conditions that most people with that disease face. The diagnosis, perhaps, spurred Miner to take on a stunning array of causes in her legislative career. She championed better health care, especially in rural areas, a decade before it became a national issue. She was on the frontlines of proposing relief for the growing crisis in agriculture, as prime sponsor for a couple of far-reaching bills that competed with Governor Janklow’s proposals. As a rancher, landowner rights were a constant in her large quiver of prime sponsorships, In 1983 she added legislative control over low-level radioactive waste siting.

In the days before the Internet and the Legislative Research Council’s website, bill titles and bill numbers were printed in many daily newspapers a day after bill introduction. An interested citizen would have to call or write to the Legislative Research Council or a friendly legislator to get a copy of the bill sent in the mail. This process could take four or five days before the bill was printed, mailed and delivered. Lobbyists generally could get bills within a day of introduction, delivered to their mailbox at the State Capitol Building. Since Deb Rogers and I lived in Pierre, it was not too much effort to pick up a copy of any bill at the Capitol Building. Because of the time lags in those days, committees rarely took up bills quickly. Still, such important and complex legislation as the Midwest Compact usually simmers for a few weeks so legislators, lobbyists and citizens can digest it.

It was expected that Governor Janklow and Majority Leader Harding would fast-track the bill, but the hearing in the Senate State Affairs Committee came two weeks after introduction. Harding knew he had enough votes in committee to pass it out to the Senate floor and from there to pass it to the House. But citizens didn’t know that as they geared up for the committee meeting.

By this point the Black Hills Group of the Sierra Club and the Black Hills Energy Coalition, which reversed a two-month decision to lay off the issue, came out with powerful arguments for the Senate State Affairs Committee to consider. Their main thrust was that the issue needed more study and the Legislature should have to vote to approve any dump site, not just leave it for the Governor or Compact Commission.

The Midwest Compact bill came up for hearing in the Senate State Affairs Committee on February 16. DWNR Secretary Neufeld testified first, touching on some of the important points in the bill. He suggested that the Compact was needed to prevent a nuclear waste dump. Not passing the Compact, said Neufeld, would open South Dakota up to hosting a dump for the nation’s waste. It was a deceitful sales job, given that his Department was working with Chem-Nuclear to site such a facility.

Opponents of the Midwest Compact had some unexpected help, however. Only one state, Michigan, had approved the Midwest Compact prior to it being introduced in South Dakota. But, interestingly, a week before Janklow had the compact introduced in the South Dakota Legislature, the North Dakota House of Representatives voted almost unanimously to turn down the Midwest Compact. Leaders there thought it needed “more study.”

“More study” was one of the main points of South Dakota opponents of the Midwest Compact, but now North Dakota’s legislators had given it considerable legitimacy. TIP’s Deb Rogers offered testimony detailing the complexity of the issue, stressing the need for careful consideration. It became the battle cry for citizen opposition, which Senator Roger Mckellips (D-Alcestor) picked up. He pushed for a summer interim study. However, the skids were greased in the Senate State Affairs Committee, which voted 6-3 to send the bill to the Senate floor. A few days later, in spite of a hasty effort to organize a citizen call-in to oppose the bill, the Senate passed the Midwest Compact bill 23-11, Senator Miner’s bill to give the Legislature power to veto a radioactive waste dump was killed off in committee.

After the Senate action came a frantic period of organizing and citizen lobbying on the nuclear waste issue. Letters to the editor flooded newspapers across the state and pointed questions were directed to legislators at crackerbarrels and coffees. Legislators reported getting numerous calls from constituents.

Meanwhile, phone calls between various citizen groups’ leaders began to touch on next steps if opponents couldn’t stop the bill in the House. Clearly, there was the option of a referendum, but who would lead it?

Jan Stites had taken the lead on this issue for the moment, but she had a problem—the Black Hills Alliance had lost funding and would have to close down its offices in downtown Rapid City. She was struggling with a decision to leave South Dakota to pursue a career in screenwriting. The Black Hills Energy Coalition had revised its initial reluctance to engage on this issue, but leading another petition drive was not something they wanted to do. Opponents of the Midwest Compact decided to focus their efforts on the State Affairs Committee of the House of Representatives, which seemed the best place to hang the bill up. Citizen lobbying was cranked up to full court press levels.

Rep. Joe Barnett (R-Aberdeen) was usually the most respected man on the third or fourth floor of the Capitol Building, and probably also on the second floor. As Majority Leader in the House, he had the respect of his caucus. He also was a Janklow tamer, one of the few people who could wander down to Janklow’s office on the second floor and talk sense to a Governor who seemed intent on having his way.

The Midwest Compact bill took a while to come up for hearing in the House State Affairs Committee, perhaps a sign that Rep. Barnett was not on board. Then as the deadline for bills came close, Rep. Barnett held a rare night hearing on the Midwest Compact to accommodate all the people who wished to testify against it. Meanwhile, Chem-Nuclear Systems, Inc., which had laid low during Senate consideration of the Midwest Compact, had sensed trouble brewing in the House. They hired some high-powered folks to lawyer and lobby for the compact bill, though they tried to keep out of the public eye as much as possible.

In the weeks since the Senate passed the bill citizens and groups across the state had cranked up a formidable letter writing campaign to members of the House of Representatives. Letters to the Editor hit the papers. Patty Swallow worked with the Crow Creek and Oglala Sioux tribes to pass resolutions opposing the compact and call for public hearings.

The night hearing before the House State Affairs Committee was a packed affair. A lot of folks came to Pierre to attend. Many, including me, came to testify. I got into a little kerfuffle with Rep. Debra Anderson over her misrepresentation of federal law on nuclear waste compacts. Chuck Kornmann, who was lobbying for Chem-Nuclear, thought I came across pretty good…for his client’s interests. Needless to say, there was a lesson I had to learn about not coming on too strongly and rubbing prickly legislators the wrong way.

Rep. Barnett took all the testimony that evening and adjourned the committee without a vote. That would come a couple days later, after discussions occurred with the executive branch about how to proceed. Rep. Barnett and other committee members were not comfortable voting for a complex bill with such potential long-term consequences for South Dakota.

“We do know perhaps we have a year to do something. I would judge it would be a summer study topic,” said Barnett as the committee prepared to vote down the Midwest Low-Level Radioactive Waste Compact. He had come to the same conclusion that South Dakota citizens and North Dakota legislators had: there was time, a year at least, to make decisions about joining a compact. There were several potential paths to take, and those hadn’t been fully explored. The House State Affairs Committee took two minutes to kill the Midwest Compact bill by a vote of 10-2.

Black Hills Alliance spokeswoman Jan Stites was elated. “This just shows the power of the people.” she said. It was a truly remarkable show of citizen power, but the vote also depended on the foresight of a number of House Republican legislators and a Democratic caucus that didn’t give in.

The vote, though, had little impact on Chem-Nuclear’s plans to build a nuclear dump in South Dakota. The Janklow Administration didn’t lift a finger to dissuade Chem-Nuclear from preliminary geological studies they were planning at the Black Hills Ordnance Depot. Chem-Nuclear sought out South Dakota companies to help with preliminary geology and hydrology studies. The company hired Rapid City attorney Gene Lebrun, a former Democratic Speaker of the South Dakota House of Representatives, to deal with legal issues in South Dakota. They had already signed up former Democratic Party staffer Chuck Kornmann as a lobbyist.

Citizen groups were not idle, either. Opponents had held preliminary discussions about an initiative or referendum prior to the House State Affairs Committee vote nixing the Midwest Compact and suggesting a summer interim study on the nuclear waste issue. With the Legislature acting responsibly the discussion of a ballot measure was shelved in favor of research and grassroots organizing for the summer interim study.

Meanwhile, Deb Rogers and I wondered how active we could be during the summer study given the expected birth of our child. We were involved in prenatal care with Dr. Spier. We read manuals about fetal and child development, and did what we could to prepare for a new baby. We had a due date around the summer solstice. We enrolled in natural childbirth classes and the Pierre Hospital class on childbirth. We practiced breathing for a natural birth. Our baby was kicking hard in the womb. We loved our child already. We didn’t want to raise a child in a state that would host nuclear waste.