Watchdogs: North Dakota must draft strong laws in case state is targeted for nuclear waste dump

FARGO — The proposal was blandly called the Pierce County deep borehole disposal field test. But the underlying idea was provocative: drill a hole three miles below pastureland into dense granite to test its suitability to store high-level radioactive waste.

The research proposal caught the people of Pierce County, which includes Rugby, N.D., by surprise when it surfaced in 2016 through newspaper reports.

There had been no community input, no contact with county commissioners or other local officials and no public education, even though the test project was backed by a $35 million federal grant and was endorsed by three state agencies. One of the initiative’s partners was the Energy and Environmental Research Center at the University of North Dakota.

The research project was killed after county commissioners declared a moratorium on nuclear waste disposal or exploration — but the experience aroused a group of concerned citizens who became watchdogs and informs a legislative debate on regulating nuclear waste now playing out in the Capitol.

Senate Bill 2037, which passed the Senate 42-3, would create a regulatory framework to deal with a possible nuclear waste disposal facility. The bill has sparked alarm from the watchdog group, North Dakota Community Alliance, because of the limitations it places on local officials: “A county zoning regulation may not prohibit a high-level radioactive waste disposal exploratory drilling permit or a high-level radioactive waste facility permitted by the commission” — the North Dakota Industrial Commission, comprised of the governor, attorney general and agriculture commissioner — “but may regulate the size, scope and location.”

Restricting local zoning authority to “size, scope and location” was suggested for legal and feasibility reasons by the Legislative Council, said Sen. Jim Roers, R-Fargo, who carried the bill to the Senate floor.

“They got as much as we can give them now, according to our council,” he said, adding that once the provisions become law, the statutes can be tweaked in future sessions.

Although the citizens group is not happy with that wording, it was the best that could be agreed upon, said Rebecca Leier of the North Dakota Community Alliance.

As amended, the bill has the group’s “conditional support,” though Leier hopes the bill can be strengthened in the House to add more legislative oversight and greater local zoning control.

Senate amendments to the bill include creation of a 12-member high-level radioactive advisory group, comprised of several state agency heads, plus representation from city and county government as well as state legislators to advise the Industrial Commission.

“That advisory group is going to have a lot of power,” Roers said. “This council will be tasked with reviewing the site proposal and issuing an approval or disapproval to the Legislature and Industrial Commission.”

If a radioactive disposal project is proposed when the Legislature is in session, lawmakers will have the authority to approve or disapprove. Otherwise, the bill grants that authority to the Industrial Commission.

A similar situation occurred at Yucca Mountain in Nevada, where Congress overrode the state’s rejection of a high-level radioactive waste repository. Years later, after spending billions of dollars and questions about the suitability of the geological formation to safely contain radioactive materials, Congress reversed itself, abandoning the project.

That reversal prompted the U.S. Department of Energy to look for other disposal options — a search that led to several potential deep borehole test locations, including several sites in North Dakota.

Officials, spurred by the North Dakota Community Alliance, want to have laws and regulations in place in the event the federal government moves to impose a high-level radioactive waste repository upon the state.

“The bill and its amendments are not an attempt to move nuclear waste to North Dakota,” Roers said. “This bill is needed to create a framework in case the federal government pushes a project on the state. A lot has been learned from Yucca Mountain.”

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Rebecca Leier, whose family owns a buffalo ranch three miles from the location of the once-proposed Pierce County test site, lived in Nevada in the 1990s, when controversy over Yucca Mountain was raging.

The experience made her skeptical — a viewpoint that was sharpened by the secrecy that surrounded a huge scientific experiment once planned so near her family’s ranch near Rugby.

Leier is one of about 10 core members of the North Dakota Community Alliance, whose members also include engineers and accountants, and they work closely with the Pierce County Commission.

Her late father, a nuclear engineer who spent his career as a health physics specialist at the Nevada Test Site and various nuclear power and atomic waste sites, warned Leier several years ago that North Dakota remained on a “short list” for nuclear waste disposal.

Although the Rugby area is no longer in the crosshairs, members have remained vigilant, and closely monitor a federal blue ribbon commission on radioactive waste disposal. Interest around Rugby remains intense enough that webcasts of the national commission’s meetings are shown on a large screen at a school gymnasium.

The abandoned deep borehole field test was an awakening for North Dakota officials, who realized state laws hadn’t kept up with federal laws, leaving the state ill-equipped to regulate a disposal site if one came along, said Ed Murphy, the state geologist.

North Dakota’s laws governing nuclear waste disposal were written in 1979, in the aftermath of the Three Mile Island nuclear mishap in Pennsylvania, and became largely outdated when federal legislation passed in 1982, Murphy said.

A bill introduced in the 2017 session ran into constitutional concerns, so an interim committee continued to study the issue, an effort that resulted in Senate Bill 2037.

“This isn’t being pushed through because there’s something on the drawing board,” Murphy said. But in case a proposal surfaces, “We need to get a viable law on the books.”

The advisory council, which has to meet at least once a year, will add depth to the law through recommending administrative rules, he said. The council’s first meeting will be in Pierce County.

Drafting adequate laws and regulations for high-level nuclear waste is a daunting challenge. The half-life of uranium 238, a radioactive isotope used in fuel rods for nuclear power plants and weapons, is 4.5 billion years.

“You have to look down the road on these things,” Murphy said.

Murphy and Roers credited the North Dakota Community Alliance’s engagement with helping to shape the legislation. “Their involvement has been very positive,” Murphy said.

Citizens around the state should be watching the issue closely, since a high-level radioactive waste disposal site has ramifications beyond a local area, Leier said.

“It affects the whole state,” she said, “so everybody should have a voice.” That’s why her group pushed for legislators to be part of the advisory group, so elected representatives would be involved in oversight.

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North Dakota officials and citizens must remain vigilant on the issue of nuclear waste disposal, as the federal government and industry cast about for a solution to the disposal dilemma, Leier said.

For instance, when the Pierce County test site was under consideration, people in Hanford, Wash., the site of a troubled nuclear weapons development facility that struggles with costly contamination problems, looked to North Dakota for a solution, she said.

“North Dakota deep borehole test could help Hanford,” a headline in the Tri-County Herald, the newspaper for an area including Hanford, noted hopefully in 2016.

“In Pierce County we were all taken by surprise,” Leier said. She doesn’t want that to happen again. “The nuclear waste problems in our nation continue to grow in the heavily populated areas that rely on cheap nuclear power, yet do not want the resulting dangerous waste disposed of in their communities.”

North Dakota, with its sparse population, wide-open spaces and widespread basement of crystalline bedrock, make it an attractive target, she said.