Guest History: 1983 Legislative Interim Raises Concerns About Nuclear Waste Compact

[An eager reader asked me a few days ago, Hey! When is Donald Pay going to write another installment in his history of South Dakota’s battle over nuclear waste in the 1980s? Don writes great stuff! As if on cue, Donald Pay submits Chapter 4 in this fascinating political history:]

History of South Dakota Nuclear Waste War: the 1983 Legislative Interim Begins

By Donald Pay

Forty years ago South Dakota faced a decision: which, if any, nuclear waste compact should the state enter. While an interim Legislative committee contemplated that decision, a giant waste disposal conglomerate sought to dump the nation’s nuclear waste in South Dakota. This is the fourth installment of the history of that controversy. Earlier installments can be found here, here, and here. Many links in this installment are to news stories carried by South Dakota media and archived at newspapers.com. They can be read with a free one-week subscription, or a paid subscription. 

When the dead bills of a Legislative session are carted away at sine die, some are wheeled out of the morgue and dumped on an interim Legislative committee where legislators collect per diem to dissect and study the carcasses. If there is a particularly vexing problem, say an elite lobbyist or a Governor who doesn’t like a bill, that dead bill may never be revived. Other bills just need a tweak here or there to get a second chance at life. Some, and I’m recalling Governor Bill Janklow here, claimed that putting a bill into an interim Legislative study is not about fixing its problems; it’s a polite way to kill it. 

Gov. Janklow had a point. Opponents of the Midwest Low-Level Radioactive Waste Compact believed that compact had significant flaws, and those flaws couldn’t be cured. The flaw that created the most concern was that the compact commission—not the Governor, not the Legislature, and not the people of the state—determined which state would host a disposal facility. Other compacts had escape routes or better mechanisms for host site designation. The Midwest Compact Commission had the power to dictate the all-important hosting decision, and it was not clear if a state had any recourse after that. The Midwest Compact process seemed best suited to Chem-Nuclear Systems, Inc., the company that had announced its intent to site a low-level radioactive waste facility at the Black Hills Ordnance Depot.

After the House State Affairs Committee killed the Midwest Compact bill during the 1983 Legislative session, Governor Janklow regurgitated his standard line that he was opposed “in general” to burial of radioactive waste in South Dakota. The problem was he never forthrightly stated his opposition to Chem-Nuclear’s pursuit of its nuclear dump at the Black Hills Ordnance Depot. In fact, Janklow’s Department of Water and Natural Resources was working with Chem-Nuclear as the company geared up for geologic and hydrogeologic studies. The state didn’t have any regulations set up to govern siting and operation of a radioactive waste site, and it was trying to concoct some behind closed doors.

The study Chem-Nuclear was starting was not limited to the Ordnance Depot. Ed Brooks, Director of Development for Chem-Nuclear, announced four other sites around South Dakota would be studied in addition to the BHOD. He did not say where these other sites were located. 

But why would Chem-Nuclear study four other sites in South Dakota when the company had purchased a large site that they insisted was perfect for disposal of low-level radioactive waste? Having alternative sites available to study was a requirement of the National Environmental Policy Act and Nuclear Regulatory Commission regulations. When previous low-level waste disposal facilities failed it was usually due to bad decisions on siting. Some of those sites leaked radioactive leachate into nearby water bodies and groundwater. As a result of site failures, federal regulations had tightened. They now required companies to research the geologic and hydrogeologic settings of several different sites, the risks of leaks at these sites and the impacts that leaks might have on the environment.

Chem-Nuclear’s announcement that it was pursuing a nuclear dump in South Dakota complicated the state’s decision to join a radioactive waste compact. Janklow wanted to keep the decision on entering a nuclear waste compact separate from the decision to host a facility for disposal of radioactive waste. But with Chem-Nuclear now clearly ready to begin preliminary studies on several South Dakota sites, the compact issue could not be separated from the dump issue.

For opponents of the dump, killing off South Dakota’s entry into the Midwest Compact was necessary, because that compact was Chem-Nuclear’s easiest path to sticking South Dakota with a national nuclear dump, no matter where in the state it was built. The announcement that four other sites would be studied meant it wasn’t just the site near Edgemont that could be picked to host the national radioactive waste dump. Any community in South Dakota was a target. That point, however, was often lost during the debates over this issue, probably because Chem-Nuclear and the Department of Water and Natural Resources drew an iron curtain of secrecy around the location of the other sites to be studied.

While there was disagreement on the compact issue and on hosting a national or regional radioactive waste dump, one thing everyone agreed on was that South Dakota needed to address how to store and dispose of the small amount of low-level radioactive waste that was generated in the state. That had been the requirement of a federal law passed in 1980. Some background into the history of the nation’s nuclear waste problem helps put South Dakota’s fight over the issue in perspective. 

In the 1970s the federal government pushed to solve the increasingly vexing problem of disposing high-level radioactive waste, which included spent nuclear fuel from the recent boom in nuclear power plants. In the 1940s and 1950s the wastes produced during production of nuclear weapons were an afterthought. These wastes were haphazardly discarded or stored in insufficient tanks at a dozen or so sites across the country. As the nuclear industry metastasized into the civilian nuclear power sector in the 1950s and into medical and industrial areas, storing and disposing of these highly radioactive wastes became an increasing concern for utilities and industry, for citizens and for elected leaders. The federal government’s first attempt to site a geologic disposal facility for high-level radioactive waste in an abandoned salt mine in Kansas collapsed in 1971 under scientific study and citizen opposition.

In the wake of that failure, the federal government rebooted its regulatory approach, separating regulatory issues from the Atomic Energy Commission into the newly minted Nuclear Regulatory Commission. The AEC was killed off and the nuclear development aspects of civilian nuclear power, including studies that were supposed to lead to a radioactive waste repository, were merged into the Department of Energy.

During the Carter Administration and continuing into the Reagan Administration, the newly minted Department of Energy stood up a large research effort they hoped would lead to a geologic repository to isolate high-level radioactive waste. Leaning on independent engineering and consulting firms and academic scientists to study sites in various geologic media—salt deposits, crystalline rock, shale and tuff—the effort cranked out a lot of research papers, many of which found their way onto the shelves of the Technical Information Project in Pierre, South Dakota. The Rapid City-based consulting firm, RESPEC, received funding from the Department of Energy’s Office of Nuclear Waste Isolation (ONWI) to study salt deposits, but other studies by other institutions focused on South Dakota’s shale deposits. In 1979 Governor Janklow approved an ONWI-funded study of the shale in the vicinity of Hayes, 35 miles west of Pierre.

Meanwhile, states demanded to be involved in the solutions for the less radioactive, though deceptively misnamed, low-level radioactive waste. Governors in particular wanted more authority over the various dumpsites for low-level radioactive wastes after several existing sites for low-level waste burial leaked radioactive isotopes into ground and surface waters. All but two of these sites were ordered to close by 1980, and a bottleneck for disposing of low-level radioactive waste soon developed. It was clear that previous low-level waste dumpsites had not been properly sited and constructed.

South Carolina hosted one of two facilities that remained open to low-level radioactive waste. The other facility was in the state of Washington. South Carolina’s Governor Richard Riley was fed up with his state being a de facto nationwide dump. He felt other states, particularly states generating a lot of low-level radioactive waste, were freeloading while his state shouldered what should have been a shared problem. He threatened to shut down other states’ access to the South Carolina facility at Barnwell, owned and operated by Chem-Nuclear Systems, Inc. That got the nuclear power industry, hospitals, research universities, and some manufacturers nervous, which got the nation’s Governors nervous. In 1980, Congress agreed to a new federal law that put the responsibility on states to come up with solutions to siting of low-level waste disposal facilities. States were now responsible for finding a site for the low-level radioactive waste generated in their state. 

Under that 1980 federal law, states had two ways to accomplish this—build a facility for state wastes only or band together with other states in a compact to provide for a regional, rather than a national or a single-state, disposal facility. Compacts required the approval of Congress to restrict waste just to the member states. The unstated goal of the system established by that law was to have 5–8 regional facilities that would accept low-level radioactive waste, rather than the two sites at the time that were burying all that waste. It was thought that regional compacts would be a way to end the controversy over a “national nuclear dump” that no state wanted to get stuck with. The federal law still involved the requirement to find a state to host a regional nuclear waste dump, which seemed hardly much of an improvement to many citizens, but it was what governors had been lobbying for.

As states went to work to negotiate several regional compacts, it became clear that finding a host state would be a dicey issue. As the Technical Information Project discussed in an October 1982 Memorandum, various compacts came up with different ways to select a host state. South Dakota was involved in negotiations with the Midwest Compact states, but it was possible for South Dakota to have negotiated with other states. The Central States Compact, consisting of states to the south of South Dakota, or the Rocky Mountain Compact to the west, had better provisions, especially for host state selection. It was possible for South Dakota to negotiate with North Dakota to form a two state compact. Janklow never explained his reasons for not being involved with the negotiations of other compacts. South Dakota was eligible to join any of these compacts, but the Janklow Administration never explained why those other compacts were rejected in favor of the Midwest Compact.

Janklow was right in this: killing off South Dakota’s entry into the Midwest Compact was a goal of the opponents. There were better options available. Opponents were confident they could convince legislators of that fact.

In addition South Dakota had the option to negotiate a two-state compact with North Dakota that would take care of the small amount of radioactive wastes in those states. It had the option to simply dispose of its own wastes in a state-only facility. All these options needed to be studied before any decision was made on joining a compact.

In 1983, thirteen interim Legislative committees in South Dakota considered multiple topics per committee. You might be tempted to say that 1983 legislators weren’t as lazy as legislators in 2023, who seem to be slackers by comparison. It’s true that 1980s legislators were swamped trying to address the many economic and legal issues facing the state, but the number of issues covered in interim committees during the 1980s led to rather superficial studies.

The Executive Board of the Legislature met in April to select study topics. As expected, a study of nuclear waste compacts became one of three topics that the Interim Committee on Agriculture and Natural Resources was to tackle. North Dakota’s Legislature also decided to study this issue during their interim. There was an opportunity for some interesting back and forth between the two states on the issue, including a two-state compact between the Dakotas. Other states were also taking the summer to study the compact issue.

Another nuclear issue had bubbled up in the early 1980s that concerned South Dakota and adjacent states. South Dakota hosted nuclear-tipped Minuteman II missiles in silos across West River. The Defense Department was considering South Dakota as the home of a new nuclear missile system—the MX missile. Many South Dakotans thought that the state was already doing more than its share for the nation’s nuclear defense. Some folks organized to oppose an increased nuclear presence in the state.

With President Ronald Reagan’s efforts to expand the nuclear presence in Europe generating world-wide opposition, peace activists had brought up the idea of a “freeze” in nuclear weapons. Several states put “nuclear freeze initiatives” on the ballot in 1982. Several of these initiatives passed.

The nuclear freeze movement expanded into South Dakota as the Carter and Reagan administrations sought basing the new MX missiles in the state. In April 1982 Marvin Kammerer, whose ranch borders Ellsworth Air Force Base, led a protest march against the effort to expand the nuclear presence in South Dakota. A year later, the nuclear freeze movement had grown in South Dakota, gaining strength through Christian groups and the reactivation of the peace movement.

In April 1983 Tim Langley of the South Dakota Peace and Justice Center announced an effort to collect signatures for a Nuclear Freeze Initiative for the 1984 ballot. By then, though, Wyoming Congressman Dick Cheney had announced that the Pentagon favored basing the MX system in southeastern Wyoming and western Nebraska. That took some of the heat from the issue in South Dakota, but dedicated volunteers, coordinated by my friend and Pierre Food Buying Club partner Jim Ackerman, organized a statewide effort to gather signatures. 

Meanwhile, Ray Lautenschlager’s extended family went on a trip to research Chem-Nuclear’s low-level radioactive waste facility at Barnwell, South Carolina. While Edgemont supporters of the dump touted the benefits of Chem-Nuclear’s low-level radioactive waste facility there, they had never been there. Lautenschlager’s family visited Barnwell in April 1983. They found that many community members had negative views of the facility. When Laughtenshclager returned to South Dakota, he described his trip to Associated Press reporter Bob Imrie.

”We didn’t find anyone outside of industry who had a positive view about it,” explained Lautenschlager. He heard unconfirmed stories about waste drums being buried just 20 feet above the water table. That especially concerned Lautenschlager, turning him into a relentless opponent of what Chem-Nuclear was attempting to do at the Black Hills Ordnance Depot.

Interim committees in South Dakota held their first meetings in May or June. Beside the nuclear waste issue, committees studied whether to legalize medical marijuana and railroad needs of western South Dakota in light of the announced planned abandonment of the Chicago and Northwestern rail line between Pierre and Rapid City.

Jan Stites of the Black Hills Alliance spent the time between the end of the 1983 Legislative session and the beginning of the interim committee hearings researching the past misdeeds of Waste Management, Inc., the company that had taken over Chem-Nuclear Systems, Inc. While Chem-Nuclear had a pretty good reputation among regulators, Waste Management had been plagued by repeated and serious regulatory infractions.

The Interim Agriculture and Natural Resources Committee’s first hearing on nuclear waste compacts convened on June 9 in Pierre. I had saved up my vacation days to take them when our child was born, but I used one to attend this meeting. 

Everyone expected a presentation from the Janklow Administration about its efforts over the past couple years to negotiate the Midwest Compact with the other states, and why no effort had been made to get involved with the Central States or Rocky Mountain compact negotiations. But neither Jankow nor a representative of the Department of Water and Natural Resources attended the meeting. That angered some members of the interim Legislative committee, and the most upset was Rep. Keith Paisley (R-Sioux Falls)

I had known Paisley almost all my life. He coached a Gra-Y basketball team that my younger brother’s team beat several times through his grade school years. Paisley was a fiery guy back then, and he made an impression on me. Paisley had been a track standout in college, married into a family that owned Robson Hardware in Sioux Falls, and seemed to be a fixture at First Lutheran Church where I attended Sunday school. Paisley moved up to manage the family’s hardware enterprise. He became an adult leader of a high school Hi-Y group, where he met and was moved by a disaffected black student, Steve Tolbert, a classmate of mine at Lincoln High School. Paisley later told me his attempt to understand Tolbert’s disaffection and to help disaffected students in general led him first into running for and winning a seat on the Sioux Falls school board and a few years later to seek a Legislative position. In most things, particularly on taxes and spending, Paisley was conservative.

Paisley’s fiery side came out as he seethed through the first meeting of the interim committee meeting on the nuclear waste issue. He wanted to hear a presentation by the Department of Water and Natural Resources or from Governor Janklow himself about why they put forth the Midwest Compact. He wanted to know what other options the Administration had considered and why they had not chosen another compact to join. And he wanted some clarification about how Chem-Nuclear’s efforts to site a nuclear waste dump at the Black Hills Ordnance Depot affected any decisions the Legislature would make on the compact.

“Why would the Governor submit a plan and present it in such a way that we just had to blindly accept it?” asked Paisley. “He looked at it as a nothing issue….I think we should know why?”

Then Paisley answered his question, “I think I know why. I think it was [the Governor’s] intent that we do become involved” as the host state for a low-level radioactive active waste disposal site.” 

After the meeting, Jim Soyer, the governor’s press aide, brushed off legislators’ concerns, and Rep. Paisley’s charge. He said the administration had presented its position during the Legislative session in the form of the Midwest Compact bill. It was the Legislature’s turn to study the issue.

The absence of administration officials and the failure of Chem-Nuclear to testify meant the public’s testimony went unchallenged, and got far more coverage than it usually would have. Nine groups testified during the hearing with all voicing opposition to or concerns about joining the Midwest Compact. Carol Oleson of Volga, South Dakota, pointed out that South Dakota could be selected to be the host state by the Midwest Compact Commission, and the state would be forced to become a site if Chem-Nuclear’s site is as good as they said it was.

Also testifying was Linda Stensland, representing the South Dakota League of Women Voters. Stensland had been active in the League’s efforts to redistrict Minnehaha County into Legislative districts and would serve on a committee studying home rule for Sioux Falls. Stensland would play a significant role in the nuclear waste issue during the interim and as a lobbyist for the South Dakota League during the 1984 Legislative session.

At the hearing, Stensland presented copies of the League’s 15-page study of the Midwest Compact, and orally critiqued parts of the compact dealing with host state selection, transportation of radioactive wastes to any facility and issues involving liability for spills and leaks. She explained that the Midwest Compact placed liability onto the host state if the site leaked or otherwise needed remediation.

Jim MacInnes of Rapid City voiced the Sierra Club’s concerns about the economic costs of caring for a facility for hundreds of years into the future. MacInnes, a concert pianist who conducted the Black Hills Chamber Orchestra for years, would play a major role in the nuclear waste issue.

Jeane Koster of the South Dakota Peace and Justice Center said her group was “horrified” by the Midwest Compact, stressing financial and liability concerns if South Dakota hosted a dump, She was concerned that some of the wastes would be highly radioactive even if classified as low-level radioactive waste. 

The agenda of the interim committee included an hour-long conference call between officials of some of the states involved in the Midwest Compact, a Nuclear Regulatory Commission regulator and the members of the committee. Legislators heard comments from other states’ representatives that they had heard South Dakota was interested in hosting a disposal facility.

Rep. George Mortimer (R-Belle Fourche), the curmudgeonly chairman of the interim committee bristled at that suggestion, “I don’t know what you’ve been smokin’.“ He added, “If you think we’re just going to open our arms to all the waste from other states, you’re looking up the wrong tube.”

Still, Gary Sanborn of the Nuclear Regulatory Commission, advised that the issue of whether a state not in a compact could limit a company such as Chem-Nuclear from taking wastes from other states would have to be decided by Congress or the courts. That statement seemed at odds with federal law, but it was always the case that a company would try to get the courts involved if they couldn’t get a Legislature or a regulatory body to agree with what they wanted to do.

As legislators on the committee discussed agenda items for the next meeting of the committee, several issues popped out. Could they separate the compact issue from Chem-Nuclear’s proposed dump site? I had testified that the reality was that neither issue could be separated from the other. Both had to be addressed at the same time, I opined.

The committee decided, though, that the compact issue was the most immediate concern, and the issue they had been tasked to solve. Several legislators sought to bury the Midwest Compact by bringing up the idea of a two-state compact with North Dakota and South Dakota. 

The citizens who came to the interim committee meeting felt buoyed by the receptivity of the legislators. The facts and arguments by opponents seemed to resonate with legislators, and the idea of a two-state compact with North Dakota seemed to have caught on with most of the committee. After the meeting a loose coalition of groups came to a consensus to work with the Legislative interim committee. We would hold off on any initiative petitioning for now.

A few days after the interim committee meeting Chem-Nuclear Systems, Inc., began to drill 3-inch diameter test holes at the Black Hills Ordnance Depot. The test holes were to determine some basic geology of the area. One hole was to be drilled to 250 feet while three others were to extend to a depth of 50 feet. Lloyd Andrews, a spokesman for Chem-Nuclear, said the cost to drill these holes would be $20,000 and the company would study three or four other locations in South Dakota. The other locations hadn’t been chosen yet, said Andrews.

This announcement rattled Chem-Nuclear’s opponents. Just days after opponents had decided not to pursue an initiative, there was now a reason to continue planning for an initiative on the nuclear waste issue that addressed both the compact issue and the disposal site issue.

Nick Meinhardt, a long-time activist on Native American causes, had become director of the Black Hills Alliance after Russell Means left to run for Chairman of the Oglala Sioux Tribe. Meinhardt had been following the nuclear waste issue, particularly the work of Alliance researcher Jan Stites, as he tried to settle the delicate financial condition of the Alliance by closing their Rapid City office. Meinhardt now tapped into the knowledge that the Technical Information Project had gathered on the nuclear waste issue. He talked with activists around the state, cultivating a growing interest in an initiative on the nuclear waste issue. The nucleus of a coalition began to evolve and some ideas for wording of such an initiative were bandied about. Nick would spend hours on the phone and traveling to talk to leaders of grassroots organizations about a coalition effort. Still, not everyone was on-board. They were waiting for a better read of what the interim Legislative committee might decide. The next meeting of the interim committee was inexplicably set for September, three months hence. Did that have something to do with letting Chem-Nuclear get a head start on their dumpsite? No one knew why there was such a long delay.

For Deb Rogers and me, the next several weeks meant preparing for the birth of our child. We had planted our garden and rounded up all the baby things we thought we needed. Thanks to gifts of a crib, a stroller and gobs of hand-me-down baby clothes, we had almost everything covered. We bought a car seat. We had decided to make it hard on ourselves with cloth diapers. We had picked out tentative names, but wanted to see our baby before making any decision. It was now a waiting game.

When baby dropped into birth position, I was hoping to be a father on Father’s Day, but no luck. I went to work on Monday, and still no hint of baby. We went to bed on Monday thinking it could be any day now, and just after my head hit the pillow, Deb’s first contractions began. We got to the Pierre hospital somehow. It was going to be an all-nighter. Fathers had recently been allowed into the new birthing rooms at the Pierre hospital. I helped coach breathing for a natural childbirth. I had the easy part. Deb labored through the wee hours of the morning. Several other moms were in labor that night, including Carrie Raventon, Ed’s wife. Ed Raventon would author several books on the Black Hills and northern plains, and would become a lobbyist for the Sierra Club sometime after I had given it up in the late 1990s.

Baby girl Even was born at the beginning of a heat-wave. We loved her instantly. In her first months of life she rarely got to wear her smallest baby clothes, because it was too hot that summer to have her in anything but diapers and plastic pants. She was named after an elder in Wisconsin who was dying of cancer. We had worked with her on anti-nuclear issues. She was an opinionated, funny, empathetic and strong woman. And that is my daughter Even, now forty years on.