74:05:10:01.  Definitions. Words defined in SDCL 34A-6-1.3, 46A-1-3, and 46A-2-4 have the same meaning when used in this chapter unless they are defined otherwise in this section. Terms used in this chapter mean:

          (1)  "Applicant," the entity or individual applying for a grant or loan to conduct a solid waste management project;

          (2)  "Award," grant or loan funds awarded by the board for a solid waste management project pursuant to SDCL 46A-1-83 and 46A-1-84;

          (3)  "Board," the South Dakota Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;

          (4)  "Construction," actual installation of the project, including preparation of final plans, designs, specifications, and equipment purchases;

          (5)  "Department," the South Dakota Department of Agriculture and Natural Resources;

          (6)  "Designated agent," a person or entity specifically designated by resolution of the board;

          (7)  "Incineration facilities," facilities using one or more furnaces to burn solid waste to reduce the volume of the waste by removing its combustible material;

          (8)  "In-kind contributions," work or materials provided without a cash outlay that can be used as local match;

          (9)  "Nonprofit corporation," a nonprofit corporation formed pursuant to SDCL chapter 47-22;

          (10)  "Proposal," an application for a solid waste management program award for the purpose of planning, constructing, or operating a solid waste management project or for the purchasing of equipment;

          (11)  "Recipient," the entity or individual receiving grant or loan funds;

          (12)  "Recycling," as defined in SDCL 34A-6-61(16);

          (13)  "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources or a designated representative of the secretary.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-83.

          74:05:10:04.  Applications. Applicants shall submit an application to the board on forms obtained from the department. The applicant may arrange with the department for a preapplication conference to provide for orderly application preparation. An application will not be considered by the board until the secretary has determined that the application is complete. A complete application must include the following items, as applicable to the proposal:

          (1)  Application form;

          (2)  Project narrative;

          (3)  Current year budget;

          (4)  Previous two years of financial statements;

          (5)  Amortization schedules for all debt pledged to proposed security;

          (6)  Local government resolution approving signatory of application, agreements, and pay requests;

          (7)  Local government resolution approving current fee structure;

          (8)  Cooperative agreements with units of local government;

          (9)  Letters of financial commitment from other federal, state, or local agencies or private resources; and

          (10)  Business plan.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 41 SDR 173, effective May 11, 2015.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-82 to 46A-1-84.

          74:05:10:06.  Required matching funds for grants. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 26 SDR 6, effective July 28, 1999; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:07.  Application completeness determination. The secretary shall review an application  for completeness in accordance with the guidelines in § 74:05:10:04. The secretary shall notify the applicant within 30 days after receipt of the application that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. The applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 41 SDR 173, effective May 11, 2015.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-82 to 46A-1-84.

          74:05:10:08.  Review by secretary. The secretary shall review a complete application for the ability of the applicant to follow the solid waste management policies, goals, and hierarchy established in SDCL 34A-6-1.2 and the factors for decision making as identified in § 74:05:10:10. The secretary shall conduct an overall review of the applicant's financial status. This review may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of a grant, loan, or partial funding from this program or in combination with other programs.

          Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-83, 46A-1-84.

          74:05:10:11.  Decision on applications by the board. Within 120 days after applications are presented to the board, the board shall either disapprove the application or by resolution approve the application as requested or as modified by the board. The board may award less than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining any financial assistance, the board may consider the factors in § 74:05:10:10.

          The department shall notify each applicant in writing of the board's decision on the application.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-83, 46A-1-84.

          74:05:10:12.  Terms and conditions of awards. The board shall establish in the funding agreement provided for in § 74:05:10:15 the terms and conditions of awards made through the solid waste management program.

          Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-67, 46A-1-84.

          Law Implemented: SDCL 46A-1-83, 46A-1-84.

          74:05:10:12.02.  Interest rates. The board shall set the interest rates based upon:

          (1)  Current market rates;

          (2)  Current rate of alternative federal or state programs; and

          (3)  Current demand for program funds.

          Source: 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-67, 46A-1-84.

          Law Implemented: SDCL 46A-1-84.

          74:05:10:13.  Eligible use of funds. Funds may be awarded for proposals approved by the board for the planning, construction, operation of solid waste management projects, equipment purchases, research, waste tire shredding and transportation, or educational activities and for purposes identified in the application. Project activities identified as eligible uses include:

          (1)  To improve, restore, enlarge, extend, or construct projects that are consistent with the state solid waste management hierarchy detailed in SDCL 34A-6-1.2;

          (2)  To construct, acquire, or lease buildings and works essential to the operation or protection of the project;

          (3)  To construct or relocate roads, bridges, utilities, fences, and other public or private improvements related to the operation or construction of the project;

          (4)  For the following if they are necessary for the construction, operation, or implementation of a project funded under subdivisions (1), (2), or (3) of this section:

               (a)  Fees, services, and costs such as legal, engineering, environmental, architectural, fiscal advisory, recording, planning, management, and for establishing or acquiring rights;

               (b)  The purchase of an interest in or access to existing facilities when the purchase is necessary to provide efficient service and an agreement between buyer and seller is reached;

               (c)  The acquisition of interest in land, material rights, leases, permits, rights-of-way, and other evidence of land or material control which are necessary for the development of the project;

               (d)  Purchase or lease of equipment necessary to install, maintain, extend, protect, operate, or use solid waste management facilities;

               (e)  Refinancing debts incurred by or on behalf of an eligible project sponsor if both of the following conditions exist:

                      (i)   The debts were incurred for the facility, any part of the facility, or a service being refinanced; and

                      (ii)  Arrangements cannot be made with the creditors to extend or modify the terms of the debt so that the project can remain fiscally sound;

          (5)  To establish, administer, and maintain regionally managed revolving loan fund programs established by eligible planning agencies;

          (6)  To pay eligible obligations incurred before approval of funding if there were reasons for proceeding before funding was approved; or

          (7)  Capitalized interest.

          The board may consider in-kind contributions as match at a level established by usual and customary rates if use of the sponsor's employees or materials, or both, is shown to be more efficient and economical. All in-kind contributions require prior approval by the board or its designated agent.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 23 SDR 202, effective June 2, 1997; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-83, 46A-1-84.

          74:05:10:14.  Size and type of awards. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:15.  Funding agreements. If an application is approved for funding, the board shall execute a funding agreement with the applicant. Funding agreements may include the following requirements of the sponsoring entity:

          (1)  To acquire all property rights necessary for the project including water rights, rights-of-way, and interest in land needed for the construction, operation, and maintenance of the project; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the project;

          (2)  To provide security as required in § 74:05:10:29;

          (3)  To provide for the receipt of revenues to meet the requirements of debt service, operation, and maintenance and to establish reserves in an amount sufficient to assure that expenses and payments will be paid on time for loan installments, emergency maintenance, and replacement of assets that have a useful life less than the repayment period of the loan;

          (4)  To acquire and maintain insurance coverage, including fidelity bonds and performance bonds, as may be required;

          (5)  To establish and maintain books and records relating to the construction and operation of the project and its financial affairs, including a final report;

          (6)  To submit an annual financial audit or a final financial audit, or both, performed by a qualified independent accountant licensed in South Dakota;

          (7)  To provide the board and the secretary access to all books and records relating to the project and access to the property of the project so that the board may ascertain whether the sponsoring entity is complying with the provisions of this chapter and with the funding agreement;

          (8)  Not to sell, transfer, lease, or otherwise encumber the project, any portion of the project, or interest in the project without the prior written consent of the board while the funding agreement or its conditions are in effect;

          (9)  To secure written approval from the board or its designated agent for changes in project scope before or during construction according to conditions and specifications set forth in the funding agreement;

          (10)  In the case of a loan, to agree not to enter into an agreement or incur other liabilities in connection with the project, exclusive of normal maintenance, without the prior written consent of the board if the undertaking would obligate the source of funds pledged to repay the loan; and

          (11)  In the case of a loan, to agree that upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board at its option may do one or more of the following:

               (a)  Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

               (b)  For the account of the borrower, incur and pay reasonable expenses for repair, maintenance, and operation of the project and other expenses necessary to cure the cause of default; or

               (c)  Take possession of the project and repair, maintain, or operate the project or sell, lease, or otherwise dispose of the project to another entity.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-83, 46A-1-84.

          Cross-References: Requirements for accountants, SDCL chapter 36-20B, ARSD art 20:75; Recipient's accounting methods, § 74:05:10:23.

          74:05:10:17.  Applicable permits. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:18.  Environmental impact statement. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:19.  Land surveys and engineering plans and specifications. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:26.  Time restrictions for expenditures. The recipient shall expend the funds awarded to it within three years from the date the board awarded financial assistance.

          Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-61, 46A-1-83, 46A-1-84.

          Cross-Reference: Funding agreements, § 74:05:10:15.

          74:05:10:28.  Distribution of uncommitted funds. Repealed.

          Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:29.  Security. The funding agreement for a loan must contain specific requirements to secure the loan. A loan may be secured by one or more of the following:

          (1)  Full faith and credit of the borrower;

          (2)  Pledges of taxes or assessments;

          (3)  Pledges of facility revenue;

          (4)  Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, purchase contracts, and similar property rights, including leasehold interests, used in connection with the project, whether owned at the time the loan is approved or acquired with loan funds; or

          (5)  Guarantees.

          For loans secured by project revenues, a debt coverage ratio, which is a comparative statistic showing the relationship between the applicant's debt and the security pledged toward repayment, of at least 100 percent must be demonstrated in all funding agreements.

          Source: 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.

          General Authority: SDCL 46A-1-84.

          Law Implemented: SDCL 46A-1-61, 46A-1-83.

          74:05:10:30.  Review of financial status. Repealed.

          Source: 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

          74:05:10:32.  Recipient accounting methods. Repealed.

          Source: 40 SDR 14, effective July 29, 2013; repealed, 41 SDR 173, effective May 11, 2015.