CHAPTER 34A-10
REMEDIES FOR PROTECTION OF ENVIRONMENT
34A-10-1 Parties entitled to maintain actions against pollution.
34A-10-2 Parties entitled to intervene in proceedings involving pollution.
34A-10-2.1 Activity which could result in pollution, contamination, or degradation--Financial assurance concerning corrective action--Form and amount.
34A-10-2.2 Right and title in bond or security--Form and amount.
34A-10-2.3 Cleanup and remediation of environmental problems--Use of security.
34A-10-2.4 Authority to promulgate rules regarding terms and release of security and its disposition upon expiration of permit or license.
34A-10-2.5 Failure to comply with order--Injunctive relief.
34A-10-2.6 Cleanup and remediation of environmental problems--Use of oil and gas well security.
34A-10-3 Security required of plaintiff.
34A-10-4 Appointment of master or referee--Qualifications.
34A-10-5 Court remitting to administrative proceedings--Temporary relief--Retention of jurisdiction.
34A-10-6 Judicial review by court originally taking jurisdiction.
34A-10-7 Adjudication by court after administrative proceedings--Additional evidence.
34A-10-8 Detrimental conduct prohibited when reasonable alternative available.
34A-10-9 Defendant rebutting evidence of pollution.
34A-10-10 Affirmative defense of no reasonable alternative--Burden of proof and weight of evidence.
34A-10-11 Equitable relief against detrimental conduct--Conditions imposed on defendant.
34A-10-12 Apportionment of costs.
34A-10-13 Collateral estoppel--Res judicata.
34A-10-14 Chapter supplementary to other procedures.
34A-10-15 Citation of chapter.
34A-10-16 Enforcement action by department.
34A-10-17 Obtaining voluntary compliance--Administrative settlement agreements.
34A-10-1. Parties entitled to maintain actions against pollution.
The attorney general, any political subdivision of the state, any instrumentality, or agency of the state or of a political subdivision thereof, any person, partnership, limited liability company, corporation, association, organization, or other legal entity may maintain an action in the circuit court having jurisdiction where the alleged violation occurred for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, limited liability company, corporation, association, organization, or other legal entity for the protection of the air, water, and other natural resources and the public trust therein from pollution, impairment, or destruction. This section does not confer a right of action to challenge the issuance of a permit or license where the plaintiff has been notified of an agency proceeding in which the issues of environmental harm complained of might have been considered unless the agency refused to hear the complaint at such hearing. Actual notice or notice specified in the statute or rule governing the agency proceeding shall be sufficient.
Source: SL 1973, ch 144, § 2 (1); SDCL Supp, § 21-10A-1; SL 1981 (2d SS), ch 1, § 22; SL 1994, ch 351, § 69.
34A-10-2. Parties entitled to intervene in proceedings involving pollution.
If administrative, licensing, or other proceedings, and judicial review thereof are available by law, the agency may permit the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, limited liability company, corporation, association, organization, or other legal entity to intervene as a party on the filing of a pleading with the agency asserting that the proceeding or action for judicial review involves conduct which has the effect of polluting, impairing, or destroying the air, water, or other natural resources or the public trust therein. Such pleading shall be filed at least three days before the last agency evidentiary hearing conducted before the issuance of a final decision.
Source: SL 1973, ch 144, § 6 (1); SDCL Supp, § 21-10A-2; SL 1981 (2d SS), ch 1, § 23; SL 1994, ch 351, § 70.
34A-10-2.1. Activity which could result in pollution, contamination, or degradation--Financial assurance concerning corrective action--Form and amount.
Any person making application to the Water Management Board or the Board of Minerals and Environment for a permit, a license, or an extension, amendment, or renewal of an existing permit or license, which authorizes activity that could result in a significant risk of pollution, contamination, or degradation of the environment and that is not covered by a performance or damage bond or other financial assurance instrument, may be required, as a condition of the permit, to provide financial assurance guaranteeing the performance of corrective actions to contain, mitigate, and remediate all pollution, contamination, or degradation which may be caused by the activity. The financial assurance in a reasonable and proper amount shall be in a form and an amount approved by the board, and may include insurance, company net worth considerations, a surety bond, escrow account, letter of credit, trust, guarantee, or cash deposit.
Source: SL 1989, ch 306, § 68; SL 2011, ch 165, § 137.
34A-10-2.2. Right and title in bond or security--Form and amount.
All right and title in any bond or other security required by the Water Management Board or the Board of Minerals and Environment under any provision of this title, Title 45, or Title 46 for the protection of the environment or reclamation of lands or other resources shall be in the state until the board by order releases the security. The bond or other security does not constitute an asset of the person required to provide it, and may not be cancelled, assigned, revoked, disbursed, replaced, or allowed to terminate without board approval. The bond or other security shall be in a form and a reasonable and proper amount approved by the board, and may include a surety bond, escrow account, letter of credit, trust, guarantee, or cash deposit. The board may permit the use of financial assurance other than a bond, including company net worth considerations. Interest earned on any bond or deposit made under § 34A-10-2.1 shall be returned annually to the person required to provide the bond.
Source: SL 1989, ch 306, § 69; SL 2011, ch 165, § 138.
34A-10-2.3. Cleanup and remediation of environmental problems--Use of security.
The state, with any board or court approval necessary, as provided in the permit or security instrument required under § 34A-10-2.1 or 34A-10-2.2, may use the security as necessary for the cleanup and remediation of environmental problems related to the activity for which the security was provided. If security is forfeited in accordance with § 45-9-15 due to the failure of an oil and gas well operator to perform according to the provisions of §§ 45-9-5 to 45-9-18, inclusive, the state may use the security for environmental cleanup or remediation of any lands or resources regulated under chapter 45-9. When the cleanup and remediation is complete, as certified by the board, or sufficient funds have been set aside to achieve complete remediation pursuant to a site-specific, board-approved remedial action plan, the state may proceed against any remaining security for the purpose of collecting any properly recoverable cost incurred by the state in pursuing the cleanup, environmental damages, or penalties. Until the environmental cleanup or remediation is complete, any state cost, environmental damage, and penalty judgments have been satisfied and the security has been released by the board, the security may not be assigned for the benefit of creditors, attached, garnished, levied, or executed on, or subject to process issued from any court; except for the purpose of enabling the state to effectuate the environmental cleanup or remediation.
Source: SL 1989, ch 306, § 70; SL 2020, ch 154, § 1.
34A-10-2.4. Authority to promulgate rules regarding terms and release of security and its disposition upon expiration of permit or license.
The Water Management Board and the Board of Minerals and Environment shall establish, by rules promulgated pursuant to chapter 1-26:
(1) Criteria to determine the amount of security required and other terms as necessary to define the respective obligation of the parties;
(2) The procedure to follow and the circumstances under which the state or applicant may obtain board approval for the release of the security; and
(3) Conditions under which the security may be held by the state after the expiration of the permit or license.
Source: SL 1989, ch 306, § 71.
34A-10-2.5. Failure to comply with order--Injunctive relief.
The secretary of the Department of Agriculture and Natural Resources may bring an action without furnishing of bond, for an injunction against any person who fails to comply with an order issued by the secretary or any official under the secretary's supervision having authority to issue such order by virtue of this title, Title 45, or Title 46. The court to which the department applies for an injunction may issue a temporary injunction, if it finds there is reasonable cause to believe that the allegations of the department are true, and it may issue a temporary restraining order pending action on the temporary injunction.
Source: SL 1989, ch 306, § 72; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2011, ch 165, § 139; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-10-2.6 . Cleanup and remediation of environmental problems--Use of oil and gas well security.
If necessary cleanup and remediation of environmental problems related to the site-specific activity for which security was provided in accordance with § 45-9-15 is complete, as certified by the board, or sufficient funds have been set aside to achieve complete remediation pursuant to a site-specific, board-approved remedial action plan, the state may use the remaining security for environmental cleanup or remediation of any lands or resources regulated under chapter 45-9 if forfeiture of the security was ordered solely or in part due to the failure of the operator to perform in accordance with the provisions of §§ 45-9 -5 to 45-9 -18, inclusive.
Source: SL 2020, ch 154, § 2.
34A-10-3. Security required of plaintiff.
If the court has reasonable ground to doubt the solvency of the plaintiff or the plaintiff's ability to pay any cost or judgment which might be rendered against the plaintiff in an action brought under this chapter, the court may order the plaintiff to post a surety bond or cash not to exceed five hundred dollars.
Source: SL 1973, ch 144, § 3; SDCL Supp, § 21-10A-3; SL 2011, ch 165, § 140.
34A-10-4. Appointment of master or referee--Qualifications.
The court may appoint a master or referee, who shall be a disinterested person and technically qualified, to take testimony and make a record and a report of his or her findings to the court in the action.
Source: SL 1973, ch 144, § 4 (2); SDCL Supp, § 21-10A-4; SL 2011, ch 165, § 141.
34A-10-5. Court remitting to administrative proceedings--Temporary relief--Retention of jurisdiction.
If, in an action pursuant to § 34A-10-1, administrative, licensing, or other proceedings are required or available to determine the legality of the defendant's conduct, the court shall remit the parties to such proceedings. The proceedings shall be conducted in accordance with and subject to the provisions of chapters 34A-1 and 34A-2. In so remitting the court may grant temporary equitable relief if necessary for the protection of the air, water, and other natural resources or the public trust in such resources from pollution, impairment, or destruction. In so remitting the court shall retain jurisdiction of the action pending completion of the action for the purpose of determining whether adequate protection from pollution, impairment, or destruction has been afforded.
Source: SL 1973, ch 144, § 5 (2); SDCL Supp, § 21-10A-5; SL 1981 (2d SS), ch 1, § 24; SL 2011, ch 165, § 142.
34A-10-6. Judicial review by court originally taking jurisdiction.
If judicial review of any administrative, licensing, or other proceeding is available, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.
Source: SL 1973, ch 144, § 5 (4); SDCL Supp, § 21-10A-6; SL 2011, ch 165, § 143.
34A-10-7. Adjudication by court after administrative proceedings--Additional evidence.
Upon completion of proceedings under § 34A-10-5, the court shall adjudicate the impact of the defendant's conduct on the air, water, or other natural resources and on the public trust therein in accordance with this chapter. In such adjudication the court may order that additional evidence be taken to the extent necessary to protect the rights recognized in this chapter.
Source: SL 1973, ch 144, § 5 (3); SDCL Supp, § 21-10A-7.
34A-10-8. Detrimental conduct prohibited when reasonable alternative available.
In any administrative, licensing, or other proceedings, as described in § 34A-10-2, and in any judicial review of the proceedings, any alleged pollution, impairment, or destruction of the air, water, or other natural resources or the public trust in the resources shall be determined. No conduct may be authorized or approved which does, or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in the resources, if there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare.
Source: SL 1973, ch 144, § 6 (2); SDCL Supp, § 21-10A-8; SL 2011, ch 165, § 144.
34A-10-9. Defendant rebutting evidence of pollution.
When the plaintiff in the action has made a prima facie showing that the conduct of the defendant is polluting, impairing, or destroying the air, water, or other natural resources or the public trust therein, the defendant may rebut the prima facie showing by the submission of evidence to the contrary.
Source: SL 1973, ch 144, § 4 (1); SDCL Supp, § 21-10A-9.
34A-10-10. Affirmative defense of no reasonable alternative--Burden of proof and weight of evidence.
The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this chapter.
Source: SL 1973, ch 144, § 4 (1); SDCL Supp, § 21-10A-10.
34A-10-11. Equitable relief against detrimental conduct--Conditions imposed on defendant.
The court may grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water, and other natural resources or the public trust therein from pollution, impairment, or destruction.
Source: SL 1973, ch 144, § 5 (1); SDCL Supp, § 21-10A-11.
34A-10-12. Apportionment of costs.
Costs may be apportioned to the parties if the interests of justice require.
Source: SL 1973, ch 144, § 4 (3); SDCL Supp, § 21-10A-12.
34A-10-13. Collateral estoppel--Res judicata.
The doctrines of collateral estoppel and res judicata shall be applied by the court to prevent multiplicity of suits.
Source: SL 1973, ch 144, § 6 (3); SDCL Supp, § 21-10A-13.
34A-10-14. Chapter supplementary to other procedures.
This chapter shall be supplementary to existing administrative and regulatory procedures.
Source: SL 1973, ch 144, § 7; SDCL Supp, § 21-10A-14.
34A-10-15. Citation of chapter.
This chapter shall be known and may be cited as the "South Dakota Environmental Protection Act of 1973."
Source: SL 1973, ch 144, § 1; SDCL Supp, § 21-10A-15.
34A-10-16. Enforcement action by department.
The department need not exhaust its administrative remedies, if any exist, before commencing any action to enforce the provisions of Title 34A, 45, or 46.
Source: SL 1991, ch 288, § 17.
34A-10-17. Obtaining voluntary compliance--Administrative settlement agreements.
Nothing in this chapter prevents the Department of Agriculture and Natural Resources from obtaining voluntary compliance with the provisions of Title 34A, 45, or 46, through warning, conference, settlement, or any other appropriate means. The secretary may enter into administrative settlement agreements in regard to violations of the provisions of Title 34A, 45, or 46, including stipulated settlements of any civil penalty authorized under that title.
Source: SL 1992, ch 26, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
