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CHAPTER 38-21

AGRICULTURAL PESTICIDE APPLICATION

38-21-1 to 38-21-13. Repealed.
38-21-14      Definition of terms.
38-21-14.1      Repealed.
38-21-15      Pesticide handling causing injury or pollution prohibited--Rules and regulations--Penalty for violation.
38-21-15.1      Bulk pesticide storage facility permit--Approval of plans for construction and operation--Revocation of permit--Operation without permit as misdemeanor.
38-21-15.2      Operation without permit--Civil penalty, injunctive, or declaratory relief.
38-21-15.3      Plans prepared by registered professional engineer not required nor prohibited.
38-21-16      Reporting of pesticide accidents.
38-21-17      Applicator's license required to apply pesticides--Annual fee--Exemption--Penalty for violation.
38-21-18      Standards for certification of applicators.
38-21-19      Repealed.
38-21-20      Issuance of applicator's license to qualified applicants.
38-21-21      Written explanation when license not issued.
38-21-22      Restrictions on applicator's license.
38-21-23      Certification required for private application of pesticide--Fee--Penalty for violation.
38-21-24      Records required of private and commercial applicators.
38-21-25      Repealed.
38-21-26      Expiration of applicator's license.
38-21-27 to 38-21-32. Repealed.
38-21-33      Classes of certifications and licenses.
38-21-33.1      Unlicensed operation as pesticide dealer as misdemeanor--Biennial expiration--Additional penalty for violation.
38-21-33.2      Exemption for physicians, veterinarians and pharmacists making minimum sales.
38-21-33.3      Exemption for pesticide applicators and government agencies.
38-21-33.4      Dealer's license required for each outlet--License for distribution from out-of-state outlet--Transitory locations prohibited.
38-21-33.5      Dealers' license fees--Form of application.
38-21-33.6      Denial, suspension, or revocation of dealer's license--Hearing.
38-21-33.7      Repealed.
38-21-33.8      Exemption from purchasing poison license and maintaining poison register.
38-21-34      One license fee only.
38-21-35      Veterinarians exempt in normal course of practice.
38-21-36      Research applications under laboratory conditions exempt.
38-21-37      Application without compensation exempt.
38-21-38      Personal farm use exempt.
38-21-39      Restricted-use pesticide classifications.
38-21-39.1      Unlicensed sale of restricted-use pesticide as misdemeanor--Additional penalty for violation.
38-21-39.2      Sale of restricted-use pesticide to unlicensed person by licensed dealer as misdemeanor--Additional penalty for violation.
38-21-39.3      Uncertified buying of restricted-use pesticide as misdemeanor--Additional penalty for violation.
38-21-40      Certification required for use of restricted-use pesticides--Restrictions--Criteria--Penalty for violation.


38-21-41      Reciprocal waiver of examinations.
38-21-42      Renewal of license or certification without examination--Exceptions.
38-21-43      Penalty for late renewal.
38-21-44      Suspension, denial, revocation, or modification of license or certification--Grounds--Penalty for violation--Action against violator.
38-21-45      Liability for pesticide damage unaffected by chapter.
38-21-46      Damage claims--Filing with secretary--Time.
38-21-47      Notice of receipt of damage claim--Copies furnished--Inspection of damages--Determination of merit.
38-21-48      Observation of claimed damage to be permitted.
38-21-49      Failure to file damage statement not a violation--Refusal to hold suspension or revocation hearing when statement not filed.
38-21-50      Repealed.
38-21-50.1      Application without license as misdemeanor--Additional penalty for violation.
38-21-50.2      Damages to person injured not lessened.
38-21-51      Administration and enforcement of chapter--Regulations.
38-21-52      Cooperation and agreements with other agencies and governmental units.
38-21-53      Entry and inspection of premises by secretary.
38-21-54      Search warrant when access denied.
38-21-55      Injunction of violations.
38-21-56      Promulgation of rules for notification of pesticide application.
38-21-57      Pesticide regulatory fund--Administration--Expenditures.
38-21-58      Application of pesticide to commercial applicator's own property.


     38-21-1 to 38-21-13.   Repealed by SL 1974, ch 255, § 35


     38-21-14.   Definition of terms. Terms used in this chapter mean:
             (1)      "Animals," all vertebrate and invertebrate species, including man;
             (2)      "Bulk pesticide," any volume of a pesticide which is transported or held in an immediate reusable container. This does not include pesticides which are in the custody of the ultimate user and are fully prepared for use by the user;
             (3)      "Bulk pesticide storage facility," any area, location, tract of land, building, structure, or premises constructed in accordance with rules promulgated by the secretary for the storage of bulk pesticides;
             (4)      "Certified applicator," any individual who is certified under this chapter to use any pesticide;
             (5)      "Commercial applicator," any certified applicator who uses any pesticide on any property other than as a private applicator;
             (6)      "Defoliant," any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission;
             (7)      "Desiccant," any substance or mixture of substances intended for artificially accelerating the drying of plant tissue;
             (8)      "Device," any instrument or contrivance, other than a firearm, which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life, other than man and other than bacteria, virus, or other microorganism on or in living man or other living animals, but not including equipment used for the application of pesticides when sold separately therefrom;
             (9)      "Environment," includes water, air, land, and all plants and animals living therein, and the interrelationships which exist among these;
             (10)      "Equipment," any type of ground, water, or aerial equipment or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in such land, but does not include any pressurized hand-sized household apparatus used contrivance of which the person who is applying the pesticide is the source of power or energy in making the pesticide application;
             (11)      "Fungus," any nonchlorophyll-bearing thallophyte, except those on or in processed food, beverages, or pharmaceuticals or those on or in living animals;
             (12)      "Insect," any of the numerous small invertebrate animals belonging to the class insecta or to other allied classes of arthropods;
             (13)      "Labeling," any label and other written, printed, or graphic matter:
             (a)      On the pesticide or device or any of its containers or wrappers;
             (b)      Accompanying the pesticide or device at any time; or
             (c)      To which reference is made on the label or in literature accompanying the pesticide or device, except accurate, nonmisleading reference to current official publications of any government institution or official agency of the United States or of this or any other state, authorized by law to conduct research in the field of pesticides;
             (14)      "Land," all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation;
             (15)      "Licensed applicator," any certified applicator who is licensed under this chapter and who owns, manages, or is employed by a pesticide application business which is engaged in the business of applying pesticides upon the lands of another or applies pesticides while in the performance of his duties as a government employee;
             (16)      "Licensed pesticide dealer," any person who is licensed under this chapter and who distributes restricted-use pesticides or pesticides whose uses or distribution are restricted by regulation;
             (17)      "Nematode," any invertebrate animal of the phylum ne-mathel-minthes or nematoda;
             (18)      "Pest," any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man or other living animals, which the secretary by regulation may declare to be a pest;
             (19)      "Pesticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant or any substance or mixture of substances intended to be used as a spray adjuvant;
             (20)      "Plant regulator," any substance or mixture of substances, intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of ornamental or crop plants or the produce thereof, but does not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
             (21)      "Private applicator," a certified applicator who:
             (a)      Uses any pesticide other than a restricted-use pesticide for purposes of producing any agricultural commodity amounting to greater than one thousand dollars gross sales potential per year on property owned or rented by the private applicator or the private applicator's employer; or
             (b)      Uses any restricted-use pesticide for the purpose of producing any agricultural commodity on property owned or rented by the private applicator or the private applicator's employer; or
             (c)      Applies any pesticide on the property of another person without compensation other than trading of personal services between producers of agricultural commodities;
             (22)      "Restricted-use pesticide," any pesticide classified as a restricted-use pesticide by the secretary of the Department of Agriculture;
             (23)      "Rinsate," any solution containing pesticide residue which is generated from washing or flushing of pesticide containers and pesticide equipment;
             (24)      "Secretary," the secretary of the Department of Agriculture;
             (25)      "Spray adjuvant," any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent intended to be used with any other pesticide as an aid to the application or to the effect thereof, and which is in a package or container separate from that of the pesticide with which it is to be used;
             (26)      "Unreasonable adverse effects on the environment," any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide;
             (27)      "Weed," any plant which grows where not wanted.

Source: SL 1974, ch 255, § 1; SL 1975, ch 251, §§ 1, 3; SL 1976, ch 245, §§ 1, 2; SL 1985, ch 312, § 1; SL 1985, ch 377, § 2; SL 1986, ch 332, § 1; SL 1988, ch 316, § 1; SL 1991, ch 326, § 1; SL 1992, ch 283, § 1; SL 2011, ch 189, § 1; SL 2015, ch 203, § 20.


     38-21-14.1.   Repealed by SL 2015, ch 204, § 24.


     38-21-15.   Pesticide handling causing injury or pollution prohibited--Rules and regulations--Penalty for violation. No person may transport, store, use, dispose of, or handle any pesticide, pesticide container, rinsate, or application equipment in such a manner as to endanger or cause injury to humans, vegetation, crops, livestock, wildlife, or beneficial insects or to pollute groundwater or surface water. The secretary of agriculture may promulgate rules pursuant to chapter 1-26 governing the storing, transport, use, disposal of, and handling of such pesticides, pesticide containers, rinsate, and application equipment. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1974, ch 255, § 29; SL 1986, ch 326, § 41; SL 1987, ch 287, § 1; SL 1991, ch 326, § 2.


     38-21-15.1.   Bulk pesticide storage facility permit--Approval of plans for construction and operation--Revocation of permit--Operation without permit as misdemeanor. No person may establish or operate a bulk pesticide storage facility without obtaining a bulk pesticide storage facility permit from the secretary. The secretary may establish by rule pursuant to chapter 1-26, a bulk pesticide storage facility permit system and operational requirements necessary for secondary containment of bulk pesticide for the protection of the environment and human health. The secretary may require that appropriate plans and specifications for construction and operation of a bulk pesticide storage facility be submitted for approval prior to the issuance, modification, suspension, or revocation of a permit. If a bulk pesticide storage facility is operating in violation of the permit requirements established pursuant to rules promulgated under this section, the secretary may grant a reasonable period of time for the facility to comply with the rules. If the facility does not comply with the rules in the prescribed period of time, the secretary shall revoke the operating permit pursuant to chapter 1-26. Any person operating a bulk pesticide storage facility without a permit issued pursuant to this section, or operating with a revoked permit is guilty of a Class 1 misdemeanor.

Source: SL 1986, ch 332, § 3.


     38-21-15.2.   Operation without permit--Civil penalty, injunctive, or declaratory relief. Any person who operates a bulk storage facility without a permit or violates the bulk pesticide storage facility permit provision of this chapter is subject to a civil action in circuit court for the recovery of a civil penalty not to exceed five hundred dollars for each day of violation. In addition, the secretary may enforce the provisions of this chapter by means of injunctive and declaratory relief in circuit court.

Source: SL 1986, ch 332, § 4.


     38-21-15.3.   Plans prepared by registered professional engineer not required nor prohibited. The department may not promulgate a rule requiring that plans, specifications, and supporting information submitted for an alteration of an existing bulk pesticide storage facility or the construction of a new site be prepared by a registered professional engineer. Nothing in this section shall prohibit an operator of a bulk pesticide storage facility from voluntarily having the plans, specifications, and supporting information prepared by a registered professional engineer.

Source: SL 1986, ch 332, § 11.


     38-21-16.   Reporting of pesticide accidents. The secretary of agriculture shall establish rules pursuant to chapter 1-26 to require the reporting of significant pesticide accidents or incidents.

Source: SL 1974, ch 255, § 19; SL 1986, ch 326, § 42.


     38-21-17.   Applicator's license required to apply pesticides--Annual fee--Exemption--Penalty for violation. No person may engage in the business of applying pesticides to the lands of another, advertise as being in the business of applying pesticides to the lands of another at any time, apply pesticides while in the performance of duties as a governmental employee or otherwise act as a commercial applicator without an applicator's license issued by the secretary of agriculture, unless exempted under the provisions of this chapter. The secretary shall require a fee of twenty-five dollars for each applicator license issued. The secretary of agriculture shall issue an applicator license to government employees without a license fee. The fee exempt license is valid only when the applicator is applying pesticides in the course of employment for the governmental entity. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1951, ch 112, § 1; SL 1951, ch 113, § 1; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B01 (1), (3); SDCL, §§ 38-21-1, 38-21-2; SL 1974, ch 255, § 8; SL 1987, ch 287, § 2; SL 1991, ch 326, § 3; SL 2001, ch 215, § 20.


     38-21-18.   Standards for certification of applicators. The secretary of agriculture in promulgating rules pursuant to chapter 1-26 for this chapter shall prescribe standards for the certification of applicators of pesticides. Such standards shall relate to the use and handling of the pesticides, or to the use and handling of the pesticide or class of pesticides covered by the individual's certification, and shall be relative to the hazards involved. In determining these standards the secretary shall take into consideration standards of the federal Environmental Protection Agency.

Source: SL 1974, ch 255, § 6; SL 1986, ch 326, § 43.


     38-21-19.   Repealed by SL 1976, ch 245, § 6


     38-21-20.   Issuance of applicator's license to qualified applicants. If the secretary of agriculture finds the applicant qualified to apply pesticides in the classifications he has applied for, after such examinations as the secretary shall require by regulation, and if the applicant applying for a license to engage in aerial application of pesticides has met all the requirements of the Federal Aviation Agency, the Aeronautics Commission of this state, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the secretary shall issue a licensed applicator's license limited to the classifications for which he is qualified.

Source: SL 1974, ch 255, § 9; SL 1976, ch 245, § 3.


     38-21-21.   Written explanation when license not issued. If an applicator's license is not issued as applied for, the secretary of agriculture shall inform the applicant in writing of the reasons therefor.

Source: SL 1974, ch 255, § 9.


     38-21-22.   Restrictions on applicator's license. The secretary of agriculture may limit the license of the applicant to the use of certain pesticides, or to certain areas, or to certain types of equipment if the applicant is only so qualified.

Source: SL 1974, ch 255, § 9.


     38-21-23.   Certification required for private application of pesticide--Fee--Penalty for violation. No private applicator may use any pesticide without first complying with the certification requirements determined by the secretary of agriculture as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. The secretary may require a fee, to be established by rules promulgated pursuant to chapter 1-26 not to exceed five dollars for each certification. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1974, ch 255, § 13; SL 1986, ch 326, § 44; SL 1987, ch 287, § 3; SL 1991, ch 326, § 4.


     38-21-24.   Records required of private and commercial applicators. The secretary of agriculture may establish rules pursuant to chapter 1-26 to require private and commercial applicators to maintain such pesticide application records as he may deem necessary.

Source: SL 1974, ch 255, § 23; SL 1986, ch 326, § 45; SL 1991, ch 326, § 5.


     38-21-25.   Repealed by SL 1976, ch 245, § 6


     38-21-26.   Expiration of applicator's license. A licensed applicator's license shall expire on the last day of February of the second year following the year of issue unless it has been revoked or suspended prior thereto by the secretary of agriculture for cause, as provided for in § 38-21-44.

Source: SL 1953, ch 93, § 2; SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-9; SL 1974, ch 255, § 9; SL 1977, ch 309, § 1; SL 1986, ch 332, § 5; SL 2001, ch 215, § 21.


     38-21-27 to 38-21-32.   Repealed by SL 1991, ch 326, §§ 6 to 11


     38-21-33.   Classes of certifications and licenses. The secretary of agriculture may further classify or subclassify certifications or licenses to be issued under this chapter. Such classifications may include, but shall not be limited to, pest control operators, ornamental or agricultural pesticide applicators, and right-of-way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides or to the use of pesticides to control insects and plant diseases, rodents or weeds. Each classification shall be subject to separate testing procedures and requirements.

Source: SL 1974, ch 255, § 4.


     38-21-33.1.   Unlicensed operation as pesticide dealer as misdemeanor--Biennial expiration--Additional penalty for violation. It is a Class 2 misdemeanor for any person to act in the capacity of a licensed pesticide dealer or advertise as a licensed pesticide dealer at any time without first having obtained a license from the Department of Agriculture that shall expire on the last day of February of the second year following the year of issue. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1975, ch 251, § 4; SL 1977, ch 190, § 328; SL 1987, ch 287, § 5; SL 2001, ch 215, § 22.


     38-21-33.2.   Exemption for physicians, veterinarians and pharmacists making minimum sales. Licensed physicians, veterinarians, and pharmacists shall be exempt from the provisions of § 38-21-33.1 if not over three percent of total sales is derived from sale of pesticides.

Source: SL 1975, ch 251, § 4.


     38-21-33.3.   Exemption for pesticide applicators and government agencies. Section 38-21-33.1 shall not apply to a licensed pesticide applicator who sells pesticides only as an integral part of his pesticide application service when such pesticides are dispensed only through equipment used for such pesticide application, or any federal, state, county, or municipal agency which provides pesticides only for its own programs.

Source: SL 1975, ch 251, § 6; SL 1977, ch 309, § 2.


     38-21-33.4.   Dealer's license required for each outlet--License for distribution from out-of-state outlet--Transitory locations prohibited. A pesticide dealer's license shall be required for each location or outlet located within this state from which such pesticides are distributed; however, any manufacturer, registrant, or distributor who has no pesticide dealer outlet licensed within this state and who distributes such pesticides directly into this state shall obtain a pesticide dealer license for his principal out-of-state location or outlet. Licensed locations shall not be transitory.

Source: SL 1975, ch 251, § 4.


     38-21-33.5.   Dealers' license fees--Form of application. Application for a license shall be accompanied by a fifty dollar license fee and shall be on a form prescribed by the secretary of agriculture.

Source: SL 1975, ch 251, § 5; SL 2001, ch 215, § 23.


     38-21-33.6.   Denial, suspension, or revocation of dealer's license--Hearing. The dealer's license shall be subject to denial, suspension, or revocation after a hearing for any violation of this chapter, pursuant to chapter 1-26, whether committed by the dealer, or by the dealer's officer, agent, or employee.

Source: SL 1975, ch 251, § 8.


     38-21-33.7.   Repealed by SL 1986, ch 332, § 7


     38-21-33.8.   Exemption from purchasing poison license and maintaining poison register. Any person holding a pesticide dealer license pursuant to § 38-21-33.1 is exempt from purchasing a poison license for any pesticide which is also listed as a poison under chapter 34-20 and from maintaining a poison register as required in §§ 34-20-4 and 34-20-5.

Source: SL 1986, ch 282.


     38-21-34.   One license fee only. No person shall be required to pay an additional license fee if such person desires to be licensed in two or more of the license classifications provided for by the secretary of agriculture under the authority of § 38-21-33.

Source: SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-10; SL 1974, ch 255, § 5.


     38-21-35.   Veterinarians exempt in normal course of practice. The licensing requirements of this chapter shall not apply to any doctor of veterinary medicine applying pesticides other than restricted use to animals during the normal course of his veterinary practice if he is not regularly engaged in the business of applying pesticides for hire amounting to a principal or regular occupation and does not publicly hold himself out as a pesticide applicator.

Source: SL 1974, ch 255, § 27.


     38-21-36.   Research applications under laboratory conditions exempt. The licensing requirements of this chapter shall not apply to research personnel applying pesticides under laboratory conditions.

Source: SL 1974, ch 255, § 28; SL 1976, ch 245, § 5.


     38-21-37.   Application without compensation exempt. The licensing requirements of this chapter do not apply to any person using handpowered equipment to apply pesticides other than restricted use to lawns, or to ornamental shrubs and trees not in excess of twelve feet high, if applied without compensation.

Source: SL 1974, ch 255, § 26; SL 1991, ch 326, § 12.


     38-21-38.   Personal farm use exempt. The licensing requirements of this chapter do not apply to any person applying pesticides for himself or for his farmer neighbors either manually or with ground equipment if he operates farm property and maintains pesticide application equipment primarily for his own use, is not regularly engaged in the business of applying pesticides for hire amounting to a principal or regular occupation and does not publicly hold himself out as a pesticide applicator, and operates his pesticide application equipment only in the vicinity of his own property and for the accommodation of his farmer neighbors. However, certification is required if the person is using a pesticide other than restricted-use for purposes of producing any agricultural commodity amounting to greater than one thousand dollars gross sales potential per year or if restricted-use pesticides are used for the purposes of producing any agricultural commodity.

Source: SL 1974, ch 255, § 25; SL 1991, ch 326, § 13.


     38-21-39.   Restricted-use pesticide classifications. For the purpose of uniformity and in order to enter into cooperative agreements, the secretary of agriculture may establish rules promulgated pursuant to chapter 1-26, adopting restricted-use pesticides classifications as determined by the federal Environmental Protection Agency. The secretary may also by rules promulgated pursuant to chapter 1-26 determine state restricted-use pesticides, restrict the use of certain pesticides, or disallow the use of certain pesticides for the state or for designated areas within the state.

Source: SL 1974, ch 255, § 3; SL 1986, ch 326, § 47; SL 1991, ch 326, § 14.


     38-21-39.1.   Unlicensed sale of restricted-use pesticide as misdemeanor--Additional penalty for violation. It is a Class 2 misdemeanor for any person not licensed under the provisions of this chapter to sell any restricted-use pesticide to any person not certified under the provisions of this chapter. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1975, ch 251, § 9; SL 1977, ch 190, § 329; SL 1987, ch 287, § 6; SL 1988, ch 316, § 2; SL 1991, ch 326, § 15.


     38-21-39.2.   Sale of restricted-use pesticide to unlicensed person by licensed dealer as misdemeanor--Additional penalty for violation. Any licensed pesticide dealer who sells a restricted-use pesticide to any person not licensed or certified under the provisions of this chapter is guilty of a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any licensed pesticide dealer is responsible for acts committed by his officers, agents, or employees under the civil penalty provisions of this section.

Source: SL 1988, ch 316, § 3.


     38-21-39.3.   Uncertified buying of restricted-use pesticide as misdemeanor--Additional penalty for violation. Any person not certified under the provisions of this chapter who buys any restricted-use pesticide is guilty of a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1988, ch 316, § 4; SL 1991, ch 326, § 16.


     38-21-40.   Certification required for use of restricted-use pesticides--Restrictions--Criteria--Penalty for violation. No person may use any restricted-use pesticide without that person first complying with the certification requirements of this chapter or such other restrictions as may be determined by the secretary of agriculture, pursuant to § 38-21-39, as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. In determining restrictions, the secretary shall, pursuant to § 38-21-39, consider the characteristics of the pesticide formulation such as the acute dermal inhalation toxicity; the persistence, mobility, and susceptibility to biological concentration; the use experience which may reflect an inherent misuse of an unexpected good safety record which does not always follow laboratory toxicological information; the relative hazards of patterns of use such as granular soil applications, ultra-low volume or dust aerial applications, or air blast sprayer applications; and the extent of the intended use. Any person using restricted-use pesticides without complying with the certification requirements of this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1974, ch 255, § 7; SL 1987, ch 287, § 7.


     38-21-41.   Reciprocal waiver of examinations. The secretary of agriculture may waive any examination requirement provided for under any provision of this chapter on a reciprocal basis with any other state which has substantially the same standards.

Source: SL 1974, ch 255, § 24.


     38-21-42.   Renewal of license or certification without examination--Exceptions. Any person holding a current valid license or certification may renew such license or certification for the next biennium without taking another examination unless the secretary of agriculture determines that additional knowledge related to classifications for which the applicant has applied makes a new examination necessary or if additional demonstration of qualifications is determined necessary for a person who has had a license suspended or revoked or has had one or more previous violations of this chapter.

Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 8; SL 1988, ch 316, § 5; SL 2001, ch 215, § 24.


     38-21-43.   Penalty for late renewal. If the application for renewal of any license provided for in this chapter is not filed prior to March first in any year of expiration, a penalty of fifty dollars shall be assessed and added to the original fee and shall be paid by the applicant before the renewal license is issued.

Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 9; SL 2001, ch 215, § 25.


     38-21-44.   Suspension, denial, revocation, or modification of license or certification--Grounds--Penalty for violation--Action against violator. The secretary of agriculture, pending inquiry and after opportunity for a hearing, pursuant to chapter 1-26, may deny, suspend, revoke, or modify any provision of any license or certification issued under this chapter, if he finds that the applicant or the holder of a license or certification has committed any of the following acts, each of which is declared to be a violation of this chapter:
             (1)      Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;
             (2)      Made a pesticide recommendation or application inconsistent with the labeling or mixed, loaded, stored, transported, disposed, displayed, or handled a pesticide or pesticide container inconsistent with the product label or labeling. However, a deviation may include the loading and handling of the manufacturer's unbroken immediate container and provisions set forth in section 2(ee) of the Federal Insecticide, Fungicide and Rodenticide Act, as amended through July 1, 1989;
             (3)      Applied known ineffective or improper materials;
             (4)      Operated faulty or unsafe equipment;
             (5)      Operated in a faulty, careless, or negligent manner;
             (6)      Neglected or, after notice, refused to comply with the provisions of this chapter, the rules adopted hereunder, or of any lawful order of the secretary;
             (7)      Refused or neglected to keep and maintain the records required by this chapter, or to make reports when and as required;
             (8)      Made false or fraudulent records, invoices, or reports;
             (9)      Engaged in the business of applying a pesticide on the lands of another without having such license or certification as may be required by this chapter;
             (10)      Used fraud or misrepresentation in making an application for, or renewal of, a license or certification;
             (11)      Refused or neglected to comply with any limitations or restrictions on or in a duly issued license or certification;
             (12)      Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, conspired with such a licensed or an unlicensed person to evade the provisions of this chapter, or allowed one's license or certification to be used by another person;
             (13)      Made false or misleading statements to the secretary or his agents during an inspection or investigation conducted under the authority of this chapter;
             (14)      Impersonated any federal, state, county, or city inspector or official; or
             (15)      Fails to maintain the aerial requirements as stated in § 38-21-20.
     In addition to the administrative sanctions available to the secretary of agriculture pursuant to this section, any licensed or nonlicensed, certified or noncertified person who commits any of the above-mentioned acts is guilty of a Class 2 misdemeanor and may be assessed a civil penalty not to exceed five thousand dollars per violation by the circuit court. The secretary of agriculture is not required to seek the administrative sanctions available under this section prior to commencing an action in circuit court against an alleged violator of this section.

Source: SL 1951, ch 113, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B07; SDCL, § 38-21-12; SL 1974, ch 255, § 16; SL 1986, ch 332, § 10; SL 1987, ch 287, § 8; SL 1990, ch 321; SL 1991, ch 326, § 17.


     38-21-45.   Liability for pesticide damage unaffected by chapter. Nothing in this chapter shall be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides even though such use conforms to the rules and regulations promulgated under authority of this chapter.

Source: SL 1974, ch 255, § 34.


     38-21-46.   Damage claims--Filing with secretary--Time. Any person claiming damages from any use of a pesticide shall file with the secretary of agriculture on a form prescribed by the secretary a written statement within thirty days after the date that the damages occurred. If a growing crop is alleged to have been damaged, the report shall be filed prior to that time that twenty-five percent of the crop has been harvested.

Source: SL 1974, ch 255, § 20; SL 1991, ch 326, § 18.


     38-21-47.   Notice of receipt of damage claim--Copies furnished--Inspection of damages--Determination of merit. The secretary of agriculture shall, upon receipt of a statement filed pursuant to § 38-21-46, notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility of the damages claimed, and furnish copies of such statements as may be requested. The secretary shall inspect damages whenever possible and, if he determines that the complaint has merit, he shall make such information available to the person claiming damage and to the person who is alleged to have caused the damage.

Source: SL 1974, ch 255, § 20.


     38-21-48.   Observation of claimed damage to be permitted. When a statement is filed under the provisions of § 38-21-46, the claimant shall permit the secretary of agriculture, the licensee, and his representatives to observe during reasonable hours the lands or nontarget organism alleged to have been damaged in order that the damage may be determined.

Source: SL 1974, ch 255, § 22.


     38-21-49.   Failure to file damage statement not a violation--Refusal to hold suspension or revocation hearing when statement not filed. The failure to file such a statement under the provisions of § 38-21-46 shall not be a violation of this chapter. However, if the person failing to file such report is the only one injured from such use or application of a pesticide by others, the secretary of agriculture may, when in the public interest, refuse to hold a hearing for the denial, suspension, or revocation of a license or certification issued under this chapter.

Source: SL 1974, ch 255, § 21.


     38-21-50.   Repealed by SL 1987, ch 287, § 9


     38-21-50.1.   Application without license as misdemeanor--Additional penalty for violation. Any person applying pesticides to the lands of another without an applicator's license as required by § 38-21-17 is guilty of a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation.

Source: SL 1985, ch 377, § 4; SL 1987, ch 287, § 10; SL 1991, ch 326, § 19.


     38-21-50.2.   Damages to person injured not lessened. Civil penalties specified in §§ 38-21-15, 38-21-17, 38-21-23, 38-21-33.1, 38-21-39.1, 38-21-40, 38-21-44, and 38-21-50.1 do not lessen the damages that may be awarded to any person injured.

Source: SL 1987, ch 287, § 11; SL 1991, ch 326, § 20.


     38-21-51.   Administration and enforcement of chapter--Regulations. The secretary of agriculture may establish rules promulgated pursuant to chapter 1-26 concerning:
             (1)      The inspection of storage and disposal areas;
             (2)      The inspection of application equipment and equipment storage areas;
             (3)      The establishment of restricted pesticide uses or methods of distribution;
             (4)      Standards for the transportation, storage, and disposal of pesticides or pesticide containers;
             (5)      The reporting of pesticide accidents and incidents;
             (6)      Standards for the certification of applicators of pesticides;
             (7)      Standards for the examination and testing of applicators of pesticides;
             (8)      The establishment of fees for private applicator certification not to exceed five dollars per certification;
             (9)      Pesticide applicator reporting and record keeping requirements;
             (10)      The establishment of state restricted use pesticides for designated areas within the state;
             (11)      Pesticide dealers reporting and record keeping requirements;
             (12)      The establishment of certification categories and sub-categories;
             (13)      The classification or sub-classification of certificates or licenses; and
             (14)      The use of pesticides through irrigation systems.

Source: SL 1949, ch 87, § 6; SL 1951, ch 112, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B06; SDCL, § 38-21-11; SL 1974, ch 255, § 2; SL 1986, ch 326, § 48.


     38-21-52.   Cooperation and agreements with other agencies and governmental units. The secretary of agriculture may cooperate, receive grants-in-aid, and enter in to agreements with any agency of the federal government, of this state or its subdivisions, or with any agency of another state, to obtain assistance in the implementation of this chapter; to secure uniformity of regulations; to cooperate in the enforcement of the federal pesticide control laws through the use of state or federal personnel and facilities and to implement cooperative enforcement programs; to develop and administer state programs for training and certification of certified applicators consistent with federal standards; to contract for training with other agencies including federal agencies for the purpose of training certified applicators; to contract for monitoring pesticides for the national plan; to prepare and submit state plans to meet federal certification standards and issuance of experimental permits; and to regulate certified applicators.

Source: SL 1974, ch 255, § 14.


     38-21-53.   Entry and inspection of premises by secretary. So far as it may be necessary to perform any duty pursuant to the provisions of this chapter, the secretary of agriculture may enter upon any public or private premises at any reasonable time to inspect any pesticide-related equipment and the premises on which such equipment is kept or stored, to inspect lands actually or reportedly exposed to pesticides, to inspect storage or disposal areas, to investigate complaints of injury to humans or land, to examine any records required to be maintained pursuant to this chapter, or to sample pesticides being applied or to be applied.

Source: SL 1974, ch 255, § 31.


     38-21-54.   Search warrant when access denied. The secretary of agriculture may apply to any court of competent jurisdiction for a search warrant authorizing access to any land or premises to which he may be denied access pursuant to the provisions of § 38-21-53.

Source: SL 1974, ch 255, § 32.


     38-21-55.   Injunction of violations. The secretary of agriculture may bring an action in any court of competent jurisdiction to enjoin the violation or threatened violation of any provision of this chapter.

Source: SL 1974, ch 255, § 33.


     38-21-56.   Promulgation of rules for notification of pesticide application. The secretary of agriculture may promulgate rules pursuant to chapter 1-26 to require posting of application sites and notification of the public or other individuals who may be affected by a pesticide application that has occurred or will occur in the future.

Source: SL 1992, ch 284, § 1.


     38-21-57.   Pesticide regulatory fund--Administration--Expenditures. Funds collected pursuant to §§ 38-21-17, 38-21-33.5, and 38-21-43 shall be deposited with the state treasurer in a special revenue fund known as the pesticide regulatory fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the pesticide program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.

Source: SL 1993, ch 304, § 3.


     38-21-58.   Application of pesticide to commercial applicator's own property. Any commercial applicator who is licensed or certified pursuant to this chapter to apply pesticides to agricultural land may apply pesticides to property owned by the applicator if the commercial categories in which the applicator is licensed are the appropriate applications to be made. Any such applicator shall abide by all state and federal rules and regulations pertaining to private applicator pesticide application in this state when applying pesticides on the applicator's own property.

Source: SL 2013, ch 194, § 1.


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