TITLE 34A
ENVIRONMENTAL PROTECTION
Chapter
01 Air Pollution Control
02 Water Pollution Control
02A Chemigation
02B Livestock Discharge Control
03 Water Supply And Treatment System Operators
03A Safe Drinking Water
04 Sanitary Licensees [Repealed]
05 Sanitary Districts
06 Solid Waste Management
07 Litter Disposal And Control
08 Endangered And Threatened Species
08A Species Of Management Concern
09 Environmental Impact Of Governmental Actions
10 Remedies For Protection Of Environment
11 Hazardous Waste Management
12 Regulated Substance Discharges
13 Petroleum Inspection And Release Compensation
14 Petroleum Environmental Compliance Authority [Repealed]
15 Limitation On Liability Of Lenders For Environmental Damage
16 Regional Recycling And Waste Management Districts
17 Uniform Environmental Covenants Act
18 Oil Pipelines
34A-1-1
Policy of state--Purpose of chapter.
34A-1-2
Definition of terms.
34A-1-3
Repealed.
34A-1-4
Technical and operational services secured by secretary.
34A-1-5
Administration of chapter--Board functions--Enforcement as to radioactive
substances.
34A-1-6
Promulgation of rules--Purpose--Violation.
34A-1-6.1 to 34A-1-8. Repealed.
34A-1-9
Studies, investigations and educational activities of department.
34A-1-10
Cooperation by department with other agencies, persons, and groups.
34A-1-11
Classification of air contaminant sources--Reporting requirements.
34A-1-12
Records and reports required on air contaminant sources--Monitoring and sampling
methods--Other information--Violation.
34A-1-13
Access to records relating to air pollution emissions.
34A-1-14
Records and information available to public--Exception to protect trade secrets--Authorized use--Violation as misdemeanor.
34A-1-15
Establishment of ambient air quality standards--Violation.
34A-1-16
Specification of fuels permitted in state--Violation.
34A-1-17
Contamination within plant excluded from jurisdiction.
34A-1-18
Emission control and open burning requirements--Local control--Nonconformance
as violation.
34A-1-19
Emission control methods and devices required--Permission to use alternative
methods--Violation.
34A-1-20
Maintenance of motor vehicle emission control devices--Violation.
34A-1-21
Permits required for air pollutant equipment and control devices--Applications--Rules--Recommendations by secretary--Hearings--Violation--Actions taken without
a permit or in violation of permit conditions as misdemeanors.
34A-1-22
Prevention of stationary pollution sources not in compliance.
34A-1-23
Particular manufacturer not to be favored by requirements.
34A-1-24 to 34A-1-27. Repealed.
34A-1-28
Repealed.
34A-1-29 to 34A-1-35. Repealed.
34A-1-36
Municipal and county programs approved by board--Application to state facilities.
34A-1-37
Municipal and county cooperation with other agencies.
34A-1-38
Control of air contaminant sources beyond capability of local authority.
34A-1-39
Civil action for violation--Penalty.
34A-1-40
Investigations on board's own initiative--Petition by local board or electors.
34A-1-41
Entry for inspection to determine compliance--Refusal of access prohibited.
34A-1-42
Report of inspection furnished to owner or operator.
34A-1-43
Hearings by board--Procedural powers.
34A-1-44
Issuance and enforcement of orders.
34A-1-45
Emergency order for immediate reduction or discontinuance of emissions.
34A-1-46
Hearing requested on emergency order--Action by board.
34A-1-47
Notice of violation--Order for corrective action--Civil penalty.
34A-1-48
Hearing requested on order for corrective action--Time allowed.
34A-1-49
Contested case proceeding in lieu of order--Consent agreement.
34A-1-50
Board orders after hearing.
34A-1-1. Policy of state--Purpose of chapter.
It is hereby declared to be the public policy of the state to achieve and maintain reasonable levels of air quality which will protect human health and safety, prevent injury to plant and animal life and property, foster the comfort and convenience of its inhabitants, promote the economic and social development of the state and, to the greatest degree practicable, facilitate the enjoyment of the natural attractions of the state. It is also declared that local and regional air pollution control programs are to be supported to the extent practicable as essential instruments for the securing and maintenance of appropriate levels of air quality. To these ends it is the purpose of this chapter to provide for a coordinated state-wide program of air pollution prevention, abatement and control, for an appropriate distribution of responsibilities among the state and local units of government, and to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions, and to provide a framework within which all values may be balanced in the public interest.
Source: SL 1970, ch 203, § 1; SDCL Supp, § 34-16A-1.
34A-1-2. Definition of terms.
Terms used in this chapter mean:
(1) "Air contaminant," dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, radioactive materials as defined in chapter 34-21, or any combination thereof;
(2) "Air pollution," the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is or tend to be injurious to human health or welfare, animals or plant life, or property, or would interfere with the enjoyment of life or property;
(3) "Board," the Board of Minerals and Environment;
(4) "Department," the Department of Agriculture and Natural Resources;
(5) "Emission," a release into the outdoor atmosphere of air contaminants;
(6) "Person," any individual, partnership, limited liability company, firm, association, municipality, public or private corporation, subdivision or agency of the state, trust, estate, or any other legal entity;
(7) "Secretary," the secretary of agriculture and natural resources.
Source: SL 1970, ch 203, § 2; SDCL Supp, § 34-16A-2; SL 1973, ch 222, § 1; SL 1978, ch 250, § 6; SL 1994, ch 351, § 66; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-1-4. Technical and operational services secured by secretary.
The secretary may secure necessary scientific, technical, administrative, and operational services, including laboratory facilities by contract or otherwise.
Source: SL 1970, ch 203, § 5 (5); SDCL Supp, § 34-16A-8; SL 1977, ch 280, § 2; SL 2011, ch 165, § 6.
34A-1-5. Administration of chapter--Board functions--Enforcement as to radioactive substances.
The administration of this chapter is the responsibility of the secretary except that the Board of Minerals and Environment shall perform any quasi-judicial, quasi-legislative, advisory, and special budgetary functions set out in this chapter. The board, with the concurrence of the secretary may enforce those regulations promulgated pursuant to chapter 34-21 which pertain to the release of radioactive substances into the atmosphere.
Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-11; SL 1971, ch 204, § 1; SL 1977, ch 280, § 3; SL 1978, ch 250, § 7; SL 2011, ch 165, § 7.
34A-1-6. Promulgation of rules--Purpose--Violation.
The Board of Minerals and Environment may promulgate rules pursuant to chapter 1-26:
(1) To establish ambient air quality standards;
(2) To specify kind and composition of fuel sold, stored, or used;
(3) To establish requirements for open burning;
(4) To require records and maintenance of records, reports, install, use, and maintain monitoring equipment;
(5) To establish methods including sampling of emissions for air pollution sources;
(6) To establish requirements for methods and installation of machines or devices to prevent or significantly reduce air emissions;
(7) To establish procedures for attainment and maintenance of ambient air quality standards;
(8) To monitor ambient air quality;
(9) To establish procedures for variances and renewal of variances; and
(10) To establish air quality standards, requirements and procedures related to incinerators for municipal solid waste.
A violation of the rules promulgated pursuant to this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 5 (1); SDCL Supp, § 34-16A-12; SL 1977, ch 280, § 4; SL 1980, ch 238, § 10; SL 1990, ch 283, § 1; SL 1992, ch 158, § 6A.
34A-1-9. Studies, investigations and educational activities of department.
The department may:
(1) Encourage and conduct studies, investigations and research relating to air pollution and its causes, effects, prevention, abatement, and control;
(2) Determine by means of field studies and sampling the degree of air pollution in the state;
(3) Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state and make recommendations to appropriate public and private bodies with respect to such effects; and
(4) Collect and disseminate information and conduct educational and training programs relating to air pollution.
Source: SL 1970, ch 203, § 5 (9) to (11), (13); SDCL Supp, § 34-16A-16; SL 1977, ch 280, § 5; SL 2011, ch 165, § 8.
34A-1-10. Cooperation by department with other agencies, persons, and groups.
The department may:
(1) Advise, consult, and cooperate with agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups;
(2) Encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis, and provide them with technical and consultative assistance;
(3) Encourage voluntary cooperation by persons or affected groups to achieve the purposes of this chapter; and
(4) Consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source or device or system for the control of the source, device, or system, concerning the efficacy of the device or system, or the air pollution problem that may be related to the source, device, or system. Nothing in any such consultation relieves any person from compliance with this chapter, any rules in force pursuant to this chapter, or any other provisions of law.
Source: SL 1970, ch 203, § 5(6) to (8), (14), (15); SDCL Supp, § 34-16A-17; SL 1977, ch 280, § 6; SL 1986, ch 295, § 6; SL 2011, ch 165, § 9.
34A-1-11. Classification of air contaminant sources--Reporting requirements.
The Board of Minerals and Environment, by rules promulgated pursuant to chapter 1-26, may classify air contaminant sources according to levels and types of emissions and other characteristics which relate to air pollution, and may require reporting for any such class or classes. Classifications made pursuant to this section may be for application to the state as a whole or to any designated area of the state, and shall be made with special reference to effects on health, economic and social factors, and physical effects on property.
Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-18; SL 1977, ch. 280, § 7; SL 1980, ch 238, § 11; SL 1993, ch 256, § 2.
34A-1-12. Records and reports required on air contaminant sources--Monitoring and sampling methods--Other information--Violation.
The department or board may require the owner or operator of any air contaminant source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals, and procedures as the department or board shall prescribe; and provide such other information relative to compliance with this chapter and rules and regulations in force pursuant thereto as the department or board may require, including the location, size of and height of contaminant outlets, processes employed, fuels used and the nature and time periods or duration of emissions. Any violator of this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-19; SL 1973, ch 222, § 4; SL 1992, ch 158, § 7.
34A-1-13. Access to records relating to air pollution emissions.
The board may require access to records relating to emissions which cause or contribute to air pollution.
Source: SL 1970, ch 203, § 5 (4); SDCL Supp, § 34-16A-20; SL 1977, ch 280, § 8; SL 2011, ch 165, § 10.
34A-1-14. Records and information available to public--Exception to protect trade secrets--Authorized use--Violation as misdemeanor.
Any records, reports, or information obtained by the department or board from owners or operators of an air contaminant source or sources shall be available to the public, except that upon a showing satisfactory to the board by the owners or operators of an air contaminant source that the records, reports, or information obtained by the department or board regarding processes or production technique are sufficiently unique to affect adversely the competitive position of the owner or operator by revealing trade secrets, the department and board shall consider the record, report, or information or particular portion thereof confidential in the administration of this chapter. Nothing in this section prevents the disclosure of otherwise confidential records or information by the department or board, or any department, agency, or officer of state government if necessary for the prosecution of violations of the chapter or rules promulgated pursuant to this chapter. Nothing in this section prevents the use of such records or information by the department, or any department, agency, or officer of the state government in compiling or publishing analyses or summaries relating to the general condition of the outdoor atmosphere if the analyses or summaries do not identify, directly or indirectly, any owner or operator or reveal any information otherwise confidential under this section. Notwithstanding the provisions of this section, all data relating to air pollution emissions as defined in § 34A-1-2, are public records, and subject to public disclosure as provided in § 1-41-24.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1970, ch 203, §§ 13, 15; SDCL Supp, § 34-16A-21; SL 1973, ch 222, § 5; SL 1977, ch 190, § 30; SL 1995, ch 203, § 1.; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 52, eff. Apr. 19, 2021.
34A-1-15. Establishment of ambient air quality standards--Violation.
The Board of Minerals and Environment shall promulgate rules pursuant to chapter 1-26 to establish ambient air quality standards for the state as a whole or for any part of the state. Any person who violates these standards is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 5 (12); SDCL Supp, § 34-16A-22; SL 1977, ch 280, § 9; SL 1980, ch 238, § 12; SL 1992, ch 158, § 8; SL 1993, ch 256, § 3.
34A-1-16. Specification of fuels permitted in state--Violation.
The Board of Minerals and Environment may promulgate rules pursuant to chapter 1-26 that specify the kind or composition of fuels permitted to be sold, stored or used within the state if it is deemed by the board to be necessary for the achievement of ambient air quality standards. Any person who violates these rules is subject to § 34A-1-39.
Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, § 34-16A-22.1; SL 1980, ch 238, § 13; SL 1992, ch 158, § 9; SL 1993, ch 256, § 4.
34A-1-17. Contamination within plant excluded from jurisdiction.
Nothing in this chapter shall be construed to grant to the department or board any jurisdiction or authority with respect to air contamination existing solely within commercial and industrial plants, works, or shops.
Source: SL 1970, ch 203, § 17; SDCL Supp, § 34-16A-23.
34A-1-18. Emission control and open burning requirements--Local control--Nonconformance as violation.
The Board of Minerals and Environment, for the purpose of controlling pollution, shall by rules promulgated pursuant to chapter 1-26 establish emission control requirements and reasonable requirements for open burning. The requirements may vary from area to area, as may be appropriate to facilitate accomplishment of the purposes of this chapter, and in order to take necessary or desirable account of varying local conditions. Any general prohibition against all open burning shall be determined by each municipality or by each county for areas outside the boundaries of the municipalities. The board may not adopt any rule generally prohibiting all open burning, but any board rule regulating open burning shall be only as is necessary to address a specific problem. Any person who allows an emission which does not conform to a requirement in force pursuant to this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 9; SDCL Supp, § 34-16A-24; SL 1977, ch 280, § 10; SL 1977, ch 281, § 1; SL 1980, ch 238, § 14; SL 1992, ch 158, § 10; SL 1993, ch 256, § 5.
34A-1-19. Emission control methods and devices required--Permission to use alternative methods--Violation.
If the board finds that there are methods, machines, devices, or construction features which are reasonably feasible that will prevent or significantly reduce the emission of air resulting in pollution and that the public interest will be served by preventing or reducing the emission, it may require the use of such methods and the installation of such features, machines, or devices. However, the owner or operator of an air contaminant source may use any methods, construction features, machines, or devices which are as effective as those required by the board. The owner or operator of an air contaminant source may apply to the board for permission to use alternative methods, construction features, machines, or devices upon a showing by the owner or operator that the alternative methods, construction features, machines, or devices are as effective as those required by the board. Any person who violates this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-26; SL 1973, ch 222, § 6; SL 1992, ch 158, § 11; SL 2011, ch 165, § 11.
34A-1-20. Maintenance of motor vehicle emission control devices--Violation.
The Board of Minerals and Environment may promulgate rules pursuant to chapter 1-26 to control emissions from motor vehicles by the proper maintenance of all emission control equipment with which the vehicle was equipped at the time of original purchase. Any violation of these rules is subject to § 34A-1-39.
Source: SL 1973, ch 222, § 3; SDCL Supp, § 34-16A-26.1; SL 1980, ch 238, § 15; SL 1992, ch 158, § 12; SL 1993, ch 256, § 6.
34A-1-21. Permits required for air pollutant equipment and control devices--Applications--Rules--Recommendations by secretary--Hearings--Violation--Actions taken without a permit or in violation of permit conditions as misdemeanors.
The board may prohibit, by rules promulgated pursuant to chapter 1-26, the installation, alteration, or use of any machine, equipment, device, or other article which it finds may cause or contribute to air pollution or is intended primarily to prevent or control the emission of air pollutants, unless a permit therefor has been obtained from the board or the secretary. Any person in violation of these rules is subject to § 34A-1-39.
The board may require that applications for such permits shall be accompanied by plans, specifications, and such other information as the board deems necessary.
The board, by rules promulgated pursuant to chapter 1-26, shall provide for the issuance, suspension, revocation, and renewal of any permits which it may reasonably require pursuant to this section. Procedures shall provide for a recommendation on such a permit matter by the secretary with an opportunity for a contested case hearing by the board on its own motion or upon protest by the applicant or an adversely affected person. If the recommendation of the secretary is not contested, that recommendation shall become a final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with his recommendation.
A violation of a condition of a permit issued pursuant to this section is subject to § 34A-1-39.
Any person who, without a permit, commits an action for which a permit is required is guilty of a Class 1 misdemeanor. Any violation of a permit condition is a Class 2 misdemeanor and is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-27; SL 1977, ch 280, § 11; SL 1980, ch 238, § 16; SL 1991, ch 288, § 5; SL 1992, ch 158, § 13; SL 1992, ch 254, § 94.
34A-1-22. Prevention of stationary pollution sources not in compliance.
The department may enjoin the construction, modification, or operation of any stationary source of air pollution at any location where the emissions from such sources will prevent the attainment and maintenance of compliance with rules and regulations adopted by the board.
Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, § 34-16A-27.1; SL 1992, ch 158, § 14.
34A-1-23. Particular manufacturer not to be favored by requirements.
Nothing in § 34A-1-19 or 34A-1-21 authorizes the board to require the use of machinery, devices, or equipment from a particular supplier or produced by a particular manufacturer, if the required performance standards may be met by machinery, devices, or equipment otherwise available.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-28; SL 2011, ch 165, § 12.
34A-1-36. Municipal and county programs approved by board--Application to state facilities.
Each municipality and each county may, with the approval of the Board of Minerals and Environment, establish and thereafter administer within its jurisdiction an air pollution control program which provides by ordinance or local law for requirements as strict or more strict and more extensive than those imposed by this chapter and rules issued under this chapter, or, upon prior review and approval by the board, less restrictive requirements. The air pollution control jurisdiction authorized pursuant to this section applies to state facilities located within the boundaries of the municipality or county if the municipality or county has been found to be in violation of National Ambient Air Quality Standards.
Source: SL 1970, ch 203, §§ 9, 14; SDCL Supp, §§ 34-16A-25, 34-16A-41; SL 1979, ch 241; SL 2011, ch 165, § 20.
34A-1-37. Municipal and county cooperation with other agencies.
Any municipality or county may administer all or part of its air pollution control program in cooperation with one or more municipalities or counties of this state or of other states provided that the requirements of other statutes relating to cooperative agreements are met.
Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-42.
34A-1-38. Control of air contaminant sources beyond capability of local authority.
If the board finds that the control of a particular class of air contaminant source is beyond the reasonable capability of the local or county air pollution control authorities, the department may assume and retain jurisdiction over that class of air contaminant source.
Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-43.
34A-1-39. Civil action for violation--Penalty.
Any person subject to this section, as provided in this chapter, is liable for a civil penalty not to exceed ten thousand dollars per day of violation or for damages to the environment of the state, or both. An action for the recovery of a civil penalty shall, upon demand, be tried to a jury.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-44; SL 1973, ch 222, § 7; SL 1977, ch 190, § 31; SL 1977, ch 280, § 13; SL 1988, ch 291, § 17; SL 1990, ch 283, § 2; SL 1992, ch 158, § 15; SL 2011, ch 165, § 21.
34A-1-40. Investigations on board's own initiative--Petition by local board or electors.
The board may upon its own initiative cause to be investigated the alleged pollution of the air or any other violation of this chapter including the violation of any regulations issued pursuant to this chapter, or such investigation shall be made upon the verified petition of the governing body of any municipality or any municipal or county board of health or any fifteen electors of the state.
Source: SDCL, § 34-16A-11 as added by SL 1971, ch 204, § 1; SDCL Supp, § 34-16A-44.1; SL 1992, ch 60, § 2.
34A-1-41. Entry for inspection to determine compliance--Refusal of access prohibited.
Any duly authorized officer, employee, or representative of the department may enter and inspect that part of any property, premise, or place in which the officer, employee, or representative has reasonable grounds to believe is the source of air pollution at any reasonable time for the purpose of investigating the air pollution or of ascertaining the state of compliance with this chapter and rules promulgated pursuant to this chapter. No person may refuse entry or access to any authorized representative of the department who requests entry for the purpose of investigation, and who presents appropriate credentials; nor may any person obstruct, hamper, or interfere with any such investigation.
Source: SL 1970, ch 203, § 8; SDCL Supp, § 34-16A-46; SL 1973, ch 222, § 8; SL 2011, ch 165, § 22.
34A-1-42. Report of inspection furnished to owner or operator.
If requested, the owner or operator of the premises inspected pursuant to § 34A-1-41 shall receive a report setting forth all the facts found which relate to compliance status.
Source: SL 1970, ch 203, § 8; SDCL Supp, § 34-16A-47.
34A-1-43. Hearings by board--Procedural powers.
In addition to any other powers conferred on it by law the board may hold hearings relating to any aspect of or matter in the administration of this chapter, and in connection with the hearings, exercise the powers granted by chapter 1-26.
Source: SL 1970, ch 203, § 5 (2); SDCL Supp, § 34-16A-48; revised pursuant to SL 1972, ch 15, § 4; SL 2011, ch 165, § 23.
34A-1-44. Issuance and enforcement of orders.
In addition to any other powers conferred on it by law the board may issue orders necessary to effectuate the purposes of this chapter and enforce the provisions of this chapter by all appropriate administrative and judicial proceedings.
Source: SL 1970, ch 203, § 5 (3); SDCL Supp, § 34-16A-49; SL 2011, ch 165, § 24.
34A-1-45. Emergency order for immediate reduction or discontinuance of emissions.
If the secretary finds that any person is causing or contributing to air pollution and that such pollution creates an emergency by causing imminent danger to human health or safety and requires immediate action to protect human health or safety, the secretary shall order the person to reduce or discontinue immediately the emission of air contaminants. The emergency order is effective immediately on service upon the person responsible for the emission, and any person to whom such an order is directed shall comply with the order immediately.
Source: SL 1970, ch 203, § 11; SDCL Supp, § 34-16A-50; SL 2011, ch 165, § 25.
34A-1-46. Hearing requested on emergency order--Action by board.
Upon the request for a hearing by any person or persons named in an order served pursuant to § 34A-1-45, the secretary shall proceed under chapter 1-26. Following the completion of such proceedings, the board shall affirm, modify or set aside the order of the secretary.
Source: SL 1970, ch 203, § 11; SDCL Supp, § 34-16A-51; revised pursuant to SL 1972, ch 15, § 4.
34A-1-47. Notice of violation--Order for corrective action--Civil penalty.
If the secretary has reason to believe that a violation of any provision of this chapter or rule promulgated pursuant to this chapter has occurred, the secretary may cause written notice to be served upon the alleged violator. The notice shall specify the provision of this chapter or rule alleged to be violated, and the facts alleged to constitute a violation of this chapter, and may include an order that necessary corrective action be taken within a reasonable time. Any person who violates an order pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment, or both.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-53; SL 1977, ch 280, § 14; SL 1990, ch 283, § 3; SL 1992, ch 158, § 15A; SL 2011, ch 165, § 26.
34A-1-48. Hearing requested on order for corrective action--Time allowed.
Any order issued pursuant to § 34A-1-47 becomes final unless, no later than twenty days after the date the notice and order are served, the person named in the order requests in writing a hearing before the board. Upon such request, the board shall proceed in compliance with chapter 1-26.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-54; revised pursuant to SL 1972, ch 15, § 4; SL 1977, ch 280, § 15; SL 2011, ch 165, § 27.
34A-1-49. Contested case proceeding in lieu of order--Consent agreement.
In lieu of an order, the board chair may schedule a contested case under chapter 1-26 before the board. Nothing in this chapter prevents the department from notifying an alleged violator of violations and negotiating a consent agreement instead of initiating proceedings under § 34A-1-47. Any consent agreement shall be approved by the board.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-55; revised pursuant to SL 1972, ch 15, § 4; SL 1977, ch 280, § 16; SL 2011, ch 165, § 28.
34A-1-50. Board orders after hearing.
If, after proceedings held pursuant to § 34A-1-48 or 34A-1-49, the board finds that a violation or violations have occurred, it shall affirm or modify any order previously issued under § 34A-1-47 by the board chairman, or issue an appropriate order or orders for the prevention, abatement, or control of the emissions or air pollution involved. If, after proceedings on an order contained in a notice the board finds that no violation is occurring, it shall rescind the order.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-57; SL 1977, ch 280, § 17.
34A-1-51. Time allowed for corrective action in board order.
Any order issued as part of a notice or after proceedings under chapter 1-26 shall prescribe the date or dates by which the violation or violations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the emissions of air pollution.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-58.
34A-1-52. Enforcement remedies not barred by actions for penalties.
Action pursuant to § 34A-1-39 or the second paragraph of § 34A-1-14 is not a bar to enforcement of this chapter or rules in force pursuant to this chapter, and orders made pursuant to this chapter by injunction or other appropriate remedy.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-59; SL 1977, ch 280, § 18; SL 2011, ch 165, § 29.
34A-1-53. Voluntary compliance effort not precluded.
Nothing in this chapter prevents the department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-61; SL 2011, ch 165, § 30.
34A-1-54. Private remedies unimpaired.
Nothing in this chapter abridges, limits, or otherwise impairs the right of any person to damages or other relief on account of injury to persons or property and to maintain any action or other appropriate proceedings for damages or other relief.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-62; SL 2011, ch 165, § 31.
34A-1-56. General permits for categories of air pollution sources--Terms and conditions--Modification, suspension or revocation--Violation.
Upon the recommendation of the secretary and after public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the board may issue general permits for categories of air pollution sources. However, a general permit may only be issued to sources that are required by federal law to be permitted and may be no more stringent than any federal law, rule, or regulation that is applicable to the source being permitted. Air pollution control activities conducted in conformity with a general permit do not require a permit issued under § 34A-1-21.
A general permit remains in effect until suspended, revoked, or modified by the board. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the board, and upon action by the board in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit.
A violation of a condition of a permit issued pursuant to this section, or the operation of a source covered by this section without a permit is subject to § 34A-1-39.
Source: SL 1991, ch 288, § 2; SL 1992, ch 158, § 16; SL 1993, ch 257, § 8; SL 1995, ch 203, § 3.
34A-1-57. State administration of air pollution control program--Imposition of fees.
In order to enhance economic development, provide increased customer service, protect the public health, safety, welfare, and the environment of this state, the state shall retain state administration of the air pollution control program as provided under Title V of the Federal Clean Air Act as amended to January 1, 1992. In order to retain state administration of this program, as provided in the Clean Air Act, fees shall be imposed upon certain air pollution point sources as provided in § 34A-1-58. Proceeds from the fees shall be used to defray the costs of administering the state's air quality permitting program.
Source: SL 1992, ch 254, § 72; SL 1993, ch 34, § 3.
34A-1-58. Annual fee--Calculation--Annual adjustment of fee--Use of proceeds--Existing sources of pollution--Written notice from department.
Concurrent with the submittal of a permit application pursuant to this chapter and annually for the duration of the permit, the applicant shall submit to the department a fee not to exceed twenty-five dollars per ton of each regulated pollutant as determined by the provisions of Title V of the Federal Clean Air Act, 42 U.S.C. 7401 et seq. as amended to January 1, 2011, or a lesser amount as set by the secretary by rules promulgated pursuant to chapter 1-26. The secretary may exclude any amount of regulated pollutant emitted by any source in excess of four thousand tons per year in determining the amount of fee required for any operating source. The secretary shall develop a fee structure which equitably assesses an annual fee for administration costs and an annual fee based on emissions, the sum of which covers the estimated total costs of administering a delegated state air quality program. The secretary shall, by rules promulgated pursuant to chapter 1-26, annually adjust the fee, if necessary, in accordance with the consumer price index for that calendar year. The fee shall be used to cover the reasonable costs, both direct and indirect, of developing and administering the permitting requirements in this chapter, including the reasonable costs of:
(1) Reviewing and acting on any application for a permit or permit revision;
(2) Implementing and enforcing the terms and conditions of the permit if the permit is issued. This amount does not include any court costs or other costs associated with any enforcement action;
(3) Emissions and ambient monitoring, including adequate resources to audit and inspect source-operated monitoring programs;
(4) Preparing generally applicable regulations or guidance;
(5) Modeling, analysis, or demonstrations;
(6) Preparing inventories and tracking emissions; and
(7) Providing support to sources under the small business stationary source technical and environmental compliance assistance program.
For any existing source of air contaminants that is subject to Title V of the Federal Clean Air Act, 42 U.S.C. 7401, et seq., as amended to January 1, 2011, and that is not required to hold an air quality permit from the department as of January 1, 1992, the board may, as a condition of continued operation, require by rules promulgated pursuant to chapter 1-26 that the owner or operator of the source pay the annual fee provided for in this section. Nothing in this section allows the department to charge any one source of air contaminants more than one annual fee that is designed to cover the costs identified in this section. The department shall give written notice of the amount of the fee to be assessed and the basis for the assessment under this section to the owner or operator of the air contaminant source. The fee levied in this section is in addition to all other fees and taxes levied by law.
Source: SL 1992, ch 254, § 73; SL 2011, ch 165, § 33.
34A-1-58.1. Ethanol production plants--Application and annual fees.
Ethanol production plants are exempt from the fees established in § 34A-1-58 and, in lieu thereof, are subject to the fees established by this section. Concurrent with the submittal of a permit application pursuant to this chapter, the applicant for an air quality permit for an ethanol production plant shall submit to the department an application fee of one thousand dollars. In addition, the owner or operator of an ethanol production plant shall submit to the department an annual fee for the duration of the air quality permit. The annual fee shall consist of an administrative fee of one thousand dollars and an emissions fee in the amount of forty dollars per ton of total suspended particulate matter, sulfur dioxide, nitrogen oxide, volatile organic compounds, and hazardous air pollutants emitted to the air by the ethanol production plant during the previous calendar year. The department shall give written notice of the amount of the fee to be assessed and the basis for the assessment under this section to the owner or operator of the ethanol production plant by June first of each calendar year. The annual fee shall accrue on July first of the year after the permit is issued and annually thereafter. The annual fee is due and payable by July thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26. The fees shall be administered and used by the department in the same manner as prescribed for other fees established in this chapter.
Source: SL 2007, ch 202, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2019, ch 158, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-1-59. Establishment of air quality subfund--Source of subfund--Administration--Expenditures--Unexpended funds.
There is hereby established in the environmental fee fund created in § 1-41-23, the air quality subfund. This subfund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and fees received pursuant to § 34A-1-58. The subfund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the air quality permit program. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1992, ch 254, § 74; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
34A-1-60. Owner or operator to pay annual fee--Date due.
The obligation to pay the annual fee imposed by § 34A-1-58 is upon the owner or operator of a regulated air contaminant source and shall accrue on July first for all facilities. The fee is due and payable by July thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
Source: SL 1992, ch 254, § 75; SL 1993, ch 257, § 7; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2019, ch 158, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-1-61. Permit revocation, modification, or suspension--Fees.
Any permit issued pursuant to this chapter may be revoked, modified, or suspended, in whole or in part, during its term for cause, including the following:
(1) Violation of any condition of the permit;
(2) Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; or
(3) Change in any condition that requires either a temporary or permanent reduction or elimination of the permitted emissions.
Source: SL 1992, ch 254, § 93.
34A-1-62. Additional penalty for knowingly violating provisions of this chapter.
In addition to any other civil or criminal penalty imposed by this chapter, any person who knowingly violates any applicable requirement, any permit condition, or any fee or filing requirement of this chapter, or who knowingly makes any false material statement, representation, or certification in any form, in any notice or report required by a permit, or who knowingly renders inaccurate any required monitoring device or method is guilty of a Class 1 misdemeanor and, notwithstanding the maximum penalties provided by § 22-6-2, is subject to a criminal fine in a maximum amount of ten thousand dollars per day per violation.
Source: SL 1995, ch 203, § 4.
34A-1-63. Definitions pertaining to clean air act settlement fund .
Terms used in § 34A-1-64 mean:
(1) "Board," the Board of Minerals and Environment;
(2) "Clean air act settlement fund," South Dakota's share of the mitigation fund as a designated state beneficiary;
(3) "Department," the Department of Agriculture and Natural Resources;
(4) "Mitigation fund," the Volkswagen Diesel Emissions Environmental Mitigation Trust administered by Wilmington Trust, N.A., the Trustee, which the United States District Court for the Northern District of California in the case of IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Case No: MDL No. 2672 CRB (JSC) ordered to be created as part of Volkswagen Corporation's settlement with the United States and the State of California, the funds in which are to be used by states to reduce nitrogen oxide air emissions from mobile sources;
(5) "Secretary," the secretary of the Department of Agriculture and Natural Resources.
Source: SL 2019, ch 159, § 1, eff. Mar. 5, 2019; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-1-64. Clean air act settlement fund created .
Any funds received by the state from the mitigation fund shall be deposited into the clean air act settlement fund that is hereby created. The funds shall be administered by the secretary for the purpose of facilitating the improvement and protection of the ambient air quality throughout the state by reducing nitrogen oxide air emissions from mobile sources pursuant to a beneficiary mitigation plan developed by the department and approved by the board. The department's administrative costs of implementing the mitigation fund will be paid from the clean air act settlement fund through the air quality subfund established in § 34A-1-59. Any interest earned on the clean air act settlement fund shall be returned to the mitigation fund.
Source: SL 2019, ch 159, § 2, eff. Mar. 5, 2019.
CHAPTER 34A-2
WATER POLLUTION CONTROL
34A-2-1 Legislative findings and policy.
34A-2-2 Definition of terms.
34A-2-3 34A-2-3 to 34A-2-5. Repealed by SL 2013, ch 166, §§ 16 to 18.
34A-2-6 Planning consistent with federal requirements--Maximum daily loads.
34A-2-7 34A-2-7, 34A-2-8. Repealed by SL 2013, ch 166, §§ 19, 20.
34A-2-10 Classification of waters.
34A-2-11 Water quality standards--Factors considered--Objectives--Violation.
34A-2-11.1 Presumption favoring existing quality standards.
34A-2-12 Regulation of public water supplies--Violation.
34A-2-12.1 34A-2-12.1. Repealed by SL 1997, ch 208, § 1.
34A-2-13 Effluent standards--Minimum requirements--Violation.
34A-2-14 Pretreatment standards for industrial users of inadequate public treatment works--Violation.
34A-2-15 Violation of pretreatment standards for industrial user--Implementation of Federal Water Pollution Control Act.
34A-2-16 Enforcement of pretreatment standards for industrial users.
34A-2-17 Periodic review of classification and standards.
34A-2-18 Procedure for establishment of classification, standards or rules.
34A-2-19 34A-2-19. Repealed by SL 1992, ch 158, § 19.
34A-2-20 Establishment of waste treatment requirements.
34A-2-21 Causing pollution of waters prohibited--Placement of wastes--Violation.
34A-2-22 Reduction of existing water quality by discharge of waste prohibited--Violation as nuisance.
34A-2-23 34A-2-23. Repealed by SL 1992, ch 158, § 22.
34A-2-24 Discharge of wastes allowed when economic or social necessity found--Exception.
34A-2-25 Technology considered in determining economic justification for waste.
34A-2-26 Biennial review of decisions to allow discharge waste.
34A-2-27 Construction permits required for activities discharging wastes into water--Violation.
34A-2-28 Rules for permits to discharge wastes--Plans and specifications for disposal systems--Violation.
34A-2-29 Plans, specifications, and information required by secretary.
34A-2-30 Rules regarding permit procedure.
34A-2-31 Issuance, revocation, or denial of permits to discharge waste.
34A-2-32 Examination and approval or disapproval of plans for discharge of waste--Changes in plans.
34A-2-33 Certification of compliance with federal pollution control requirements.
34A-2-34 Rules for grant or denial of certification--Procedural requirements of rules.
34A-2-35 Public hearing on permit to discharge waste--Notice--Uncontested recommendation.
34A-2-36 Permit to discharge waste into surface waters required--Issuance--Maximum duration--Standards to be met--Violation.
34A-2-36.1 Permit to discharge waste into underground waters--Issuance--Maximum duration--Standards to be met--Violation.
34A-2-36.2 Concentrated animal feeding operation--Permit.
34A-2-36.3 Permit required for large operations.
34A-2-37 Effluent limitations enforced in issuance of permits.
34A-2-38 Limitations on volume and strength of waste discharged under permit--Specification of limitations and conditions.
34A-2-39 Schedules of compliance in permits for discharge.
34A-2-39.1 Extension of time to meet quality and effluent standards.
34A-2-40 Recording, reporting and inspection conditions in permit to discharge.
34A-2-41 Conditions in permits issued for publicly owned treatment works.
34A-2-42 Changes to be reported under permit for publicly owned treatment works.
34A-2-43 Discharges which may not be authorized by permit.
34A-2-44 Records, monitoring and reporting required on pollution sources.
34A-2-45 Inspection powers with respect to pollution sources.
34A-2-46 Right of entry on premises where pollution produced.
34A-2-47 34A-2-47. Repealed by SL 2013, ch 166, § 21.
34A-2-48 Orders to clean up material spilled--Violation.
34A-2-49 Grounds for revocation, suspension, or modification of permit.
34A-2-50 Notice of denial, revocation, suspension, or modification of permit--Hearing--Decision by secretary.
34A-2-51 Effective date of revocation, suspension, or modification of permit.
34A-2-52 Procedural requirements in dealing with violations.
34A-2-53 Notice to correct violations--Contents--Civil penalty.
34A-2-54 Hearing on violation--Notice.
34A-2-55 Time of hearing on violation--Respondent's request for change of time.
34A-2-56 Respondent's request for hearing on violation--Time of filing--Time of hearing.
34A-2-57 Procedure in hearing on violation--Venue.
34A-2-58 Parties permitted to appear and present evidence at hearing on violation.
34A-2-59 Record of hearing on violation.
34A-2-60 Board's decision and order to abate pollution--Times prescribed in order--Civil penalty for violation.
34A-2-61 34A-2-61 to 34A-2-63. Repealed by SL 1988, ch 285, §§ 25 to 27.
34A-2-64 Order not stayed by appeal--Findings required to grant stay.
34A-2-65 Judicial enforcement of order pending appeal.
34A-2-66 Legal representation of board in appeal.
34A-2-67 Appeal bond not required of state or board.
34A-2-68 Emergency order by secretary to stop pollution--Effective immediately--Preventive action by secretary--Violation.
34A-2-69 Notice of emergency order.
34A-2-70 Hearing on emergency order--Time and procedure for hearing.
34A-2-71 34A-2-71. Repealed by SL 1988, ch 285, § 31.
34A-2-71.1 Investigation of discharge polluting state waters--Responsible person.
34A-2-72 Action in circuit court for immediate restraint of pollution.
34A-2-73 Action by department to enjoin violations--Temporary injunction and restraining order.
34A-2-74 Initiation of action to recover penalties.
34A-2-75 Violations classified as misdemeanor--Criminal and civil penalties.
34A-2-76 34A-2-76. Repealed by SL 1992, ch 158, § 29.
34A-2-77 False representation or tampering with monitoring device prohibited--Violation.
34A-2-78 Alternative remedies not barred by invoking penalties.
34A-2-79 Remedies under chapter alternative to remedies under other law.
34A-2-80 34A-2-80 to 34A-2-81. Repealed by SL 2013, ch 166, §§ 22 to 24.
34A-2-82 Acceptance of grants for water pollution control.
34A-2-83 34A-2-83 to 34A-2-85. Repealed by SL 1986, ch 291, §§ 7 to 9.
34A-2-86 34A-2-86, 34A-2-87. Repealed by SL 2013, ch 166, §§ 25, 26.
34A-2-87.1 34A-2-87.1 to 34A-2-92.4. Repealed by SL 1986, ch 291, §§ 10 to 25.
34A-2-93 Promulgation of rules by board.
34A-2-94 Public availability of records and information obtained under chapter--Trade secrets exception.
34A-2-95 34A-2-95. Repealed by SL 2011, ch 165, § 59.
34A-2-96 Petroleum substances discharged into state waters--Liability for containment and recovery costs--Violation.
34A-2-97 Petroleum substances discharged into state waters--Notice to secretary required--Restriction on use of information in criminal proceeding--Violation.
34A-2-98 Underground storage tanks--Definitions.
34A-2-99 Underground storage tanks--Promulgation of rules--Violation.
34A-2-100 Above ground stationary storage tank defined.
34A-2-101 Promulgation of rules--Public health and water protection--Violation.
34A-2-102 Installation of above ground stationary storage tank for storage of regulated substances prohibited--Exceptions--Violation.
34A-2-103 Statement of groundwater protection strategy--Coordination of activities.
34A-2-104 Legislative findings--Declaration of public policy.
34A-2-104.1 34A-2-104.1. Repealed by SL 1996, ch 265, § 14.
34A-2-105 Conditions requiring submission of preventative action plan--Contents--Violation.
34A-2-106 Development and administration of certain ongoing programs--Review and revision by secretary.
34A-2-107 Standards used in prioritizing groundwater prevention efforts--Other factors for consideration.
34A-2-108 Repealed
34A-2-109 Formation of state management plans for use of fertilizers and pesticides to protect waters and prevent pollution.
34A-2-110 34A-2-110. Repealed by SL 2005, ch 237, § 13.
34A-2-111 Complaint required to be signed.
34A-2-112 General permit for category of water pollution control--Secretary issued--Terms and conditions--Suspension, revocation or modification--Violation.
34A-2-113 Procedure for issuance, suspension, revocation and renewal of permits--Hearing--Uncontested recommendation.
34A-2-114 Administration of national pollutant discharge elimination system permit program for pretreatment surface water discharge systems--Fee.
34A-2-115 Sewage sludge, toxic pollutants, and significant industrial user defined.
34A-2-116 Development of pretreatment programs for publicly owned treatment works--Assumption of local responsibilities by secretary on request.
34A-2-117 Annual fee on facilities permitted under the national pollutant discharge elimination system.
34A-2-118 Publicly-owned treatment works fee schedule.
34A-2-119 Industrial and governmental treatment works fee schedule.
34A-2-119.1 Annual stormwater fees on construction and industrial sites.
34A-2-120 Fee schedule for other entities.
34A-2-121 Establishment of surface water discharge and pretreatment administrative subfund--Source of funds--Administration--Expenditures--Unexpended funds.
34A-2-122 Owner or operator of surface water discharge or pretreatment system to pay annual fees--Application fee--Dates due.
34A-2-123 Promulgation of rules on disposal of sewage sludge.
34A-2-124 General permit for category of water pollution control--Effective period--Modification, suspension, or revocation--Violation.
34A-2-125 Fee on certain concentrated animal feeding operations--Subfund created.
34A-2-126 Administrative rules on underground injection control Class III wells and in situ leach mining tolled.
34A-2-1. Legislative findings and policy.
Whereas the pollution of the waters of this state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish, and aquatic life, and impairs domestic, agricultural, industrial, recreational, and other legitimate beneficial uses of water, and whereas the problem of water pollution in this state is closely related to the problem of water pollution in adjoining states, it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for water supplies, for the propagation of wildlife, fish, and aquatic life, and for domestic, agricultural, industrial, recreational, and other legitimate uses; to provide that no waste be discharged into any waters of the state without first receiving the necessary treatment or other corrective action to protect the legitimate and beneficial uses of such waters; to provide for the prevention, abatement, and control of new and existing water pollution; and to cooperate with other agencies of the state, agencies of other states, and the federal government in carrying out these objectives.
Source: SL 1973, ch 280, § 1; SDCL Supp, § 46-25-23.
34A-2-2. Definition of terms.
Terms used in this chapter mean:
(1) "Board," the Water Management Board;
(2) "Disposal system," a system for disposing of wastes, either by surface or underground methods, and includes sewerage systems, treatment works, disposal wells, septic tanks, and other systems;
(3) "Person," the state or any agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, limited liability company, association, federal agency, or other entity, and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation, or limited liability company;
(4) "Point source," any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged;
(5) "Pollutant," any dredged spoil, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, munitions, chemical waste, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, cellar dirt or any industrial, municipal or agricultural waste discharged into waters of the state. This term does not mean sewage from water craft; or water, gas or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the state after it is determined that such injection or disposal will not result in the degradation of ground or surface water resources;
(6) "Pollution," such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state as exceeds that permitted by state effluent or water quality standards, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life;
(7) "Publicly owned treatment works," any device or system used in a treatment, including recycling and reclamation, of municipal sewage or industrial waste of a liquid nature which is owned by a state or municipality. This term includes sewers, pipes or other conveyances only if they convey wastewater to a publicly owned treatment works providing treatment;
(8) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(9) "Sewerage system," pipelines or conduits, pumping stations, and force mains, and all other structures, devices, appurtenances and facilities used for collecting or conducting wastes to an ultimate point for treatment disposal;
(10) "Treatment works," any plant or other works, used for the purpose of treating, stabilizing or holding wastes;
(11) "Wastes," sewage, industrial wastes, pollutants and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state;
(12) "Waters of the state," all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the state; and
(13) "Water standards," water quality standards adopted pursuant to §§ 34A-2-10 and 34A-2-11 or actual existing beneficial uses, whichever is higher, and effluent standards adopted pursuant to § 34A-2-13 or pursuant to the best professional judgment of the secretary, whichever is applicable.
Source: SL 1973, ch 280, § 2; SDCL Supp, § 46-25-24; SL 1984, ch 243, § 1; SL 1988, ch 285, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 67; SL 2011, ch 165, § 34; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-6. Planning consistent with federal requirements--Maximum daily loads.
The secretary may establish and conduct a continuing planning process consistent with the requirements of the Federal Water Pollution Control Act, as amended to January 1, 2011, including the establishment and application of maximum daily loads of pollutants.
Source: SL 1973, ch 280, § 6 (12); SDCL Supp, § 46-25-28; SL 2011, ch 165, § 35.
34A-2-10. Classification of waters.
The Water Management Board shall promulgate rules pursuant to chapter 1-26 to establish or modify the classification of all waters in accordance with their present and future beneficial uses.
Source: SL 1973, ch 280, § 4 (2); SDCL Supp, § 46-25-32; SL 1978, ch 260, § 1; SL 1993, ch 256, § 8.
34A-2-11. Water quality standards--Factors considered--Objectives--Violation.
The Water Management Board shall promulgate rules pursuant to chapter 1-26 to establish water quality standards and to classify water according to its beneficial uses. The board shall consider environmental, technical, social, and economic factors and present use, persons adversely affected, natural background waters in relationship to the contaminants and pollutants contained in the waters, existing degradation, and irretrievable man-induced conditions placed on those waters. The standards shall protect the public health and welfare and the use of the waters for public water supplies, propagation of fish and aquatic life and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses in accordance with the Federal Water Pollution Control Act as amended to January 1, 2011. A violation of standards promulgated pursuant to this section is subject to § 34A-2-75.
Source: SDC Supp 1960, § 61.0145 as enacted by SL 1966, ch 260, § 1; SL 1967, ch 340; SDCL § 46-25-7; SL 1973, ch 280, § 4 (3); SDCL Supp, § 46-25-33; SL 1978, ch 260, § 2; SL 1986, ch 295, § 9; SL 1988, ch 285, § 1A; SL 1992, ch 158, § 16B; SL 1993, ch 256, § 9; SL 2011, ch 165, § 36.
34A-2-11.1. Presumption favoring existing quality standards.
For the purpose of §§ 34A-2-10 and 34A-2-11, existing valid water quality standards shall be presumed to be in accordance with such sections and the presumption shall be rebuttable.
Source: SL 1978, ch 260, § 3.
34A-2-12. Regulation of public water supplies--Violation.
The Board of Water Management shall promulgate rules pursuant to chapter 1-26 regulating public water supplies. A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1974, ch 245, § 10; SDCL Supp, § 46-25-33.1; SL 1985, ch 283, § 24; SL 1992, ch 158, § 16C; SL 1993, ch 256, § 10; SL 2011, ch 166, § 1.
34A-2-13. Effluent standards--Minimum requirements--Violation.
The board shall promulgate rules pursuant to chapter 1-26 to formulate effluent standards, which include as a minimum all categories for which the federal government has set standards pursuant to the Federal Water Pollution Control Act, as amended to January 1, 2011. The state standards shall be at least as stringent as the standards adopted by the federal government. Any person who violates these standards is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 4 (4); SDCL Supp, § 46-25-34; SL 1992, ch 158, § 17; SL 1993, ch 256, § 11; SL 2011, ch 165, § 37.
34A-2-14. Pretreatment standards for industrial users of inadequate public treatment works--Violation.
The board shall promulgate rules pursuant to chapter 1-26 governing pretreatment standards to be applied against industrial users of publicly owned treatment works for the introduction of pollutants into publicly owned treatment works which interfere with, pass through, or otherwise are incompatible with such treatment works. A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1974, ch 287, § 1; SDCL Supp, § 46-25-34.1; SL 1988, ch 285, § 2; SL 1992, ch 158, § 17A.
34A-2-15. Violation of pretreatment standards for industrial user--Implementation of Federal Water Pollution Control Act.
Any industrial user of publicly owned treatment works who violates pretreatment standards is subject to § 34A-2-75. The secretary or the owner of a publicly owned treatment works shall implement all provisions of section 307 of the Federal Water Pollution Control Act as amended to January 1, 2011, including issuing pretreatment industrial user permits to significant industrial users in accordance with §§ 34A-2-30 and 34A-2-36.
Source: SL 1974, ch 287, § 2; SDCL Supp, § 46-25-34.2; SL 1988, ch 285, § 3; SL 1992, ch 158, § 18; SL 1992, ch 254, § 53; SL 2011, ch 165, § 38.
34A-2-16. Enforcement of pretreatment standards for industrial users.
The secretary and owners of publicly owned treatment works may enforce pretreatment standards for pollutants introduced into its publicly owned treatment works, pursuant to the compliance and enforcement procedures of this chapter, by industrial users of such treatment works.
Source: SL 1974, ch 287, § 3; SDCL Supp, § 46-25-34.3; SL 1988, ch 285, § 4.
34A-2-17. Periodic review of classification and standards.
The board shall review from time to time, at intervals of not more than three years, established classification of waters, water quality standards, and effluent standards.
Source: SL 1973, ch 280, § 4 (5); SDCL Supp, § 46-25-35.
34A-2-18. Procedure for establishment of classification, standards or rules.
Before waters are classified or standards established or modified, or rules made, revoked, or modified, the board shall follow the procedures established by chapter 1-26.
Source: SDC Supp 1960, § 61.0145 as enacted by SL 1966, ch 260, § 1; SL 1967, ch 340; SDCL, § 46-25-8; SL 1973, ch 280, § 10; SDCL Supp, § 46-25-36.
34A-2-20. Establishment of waste treatment requirements.
The board shall establish minimum requirements for the treatment of wastes.
Source: SL 1973, ch 280, § 4 (11); SDCL Supp, § 46-25-38.
34A-2-21. Causing pollution of waters prohibited--Placement of wastes--Violation.
No person may cause pollution of any waters of the state, or place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state. A violation of this section is subject to § 34A-2-75 and may be abated as a public nuisance.
Source: SDC 1939, §§ 13.1506, 61.9901; SDCL, § 46-25-17; SL 1973, ch 280, § 8 (1); SDCL Supp, § 46-25-39; SL 1977, ch 190, § 635; SL 1984, ch 243, § 3; SL 1992, ch 158, § 20.
34A-2-22. Reduction of existing water quality by discharge of waste prohibited--Violation as nuisance.
No person may discharge any wastes into any waters of the state which reduce the quality of such waters below the water quality level existing on March 27, 1973. A violation of this section is subject to § 34A-2-75 and may be abated as a public nuisance.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-40; SL 1977, ch 190, § 636; SL 1984, ch 243, § 4; SL 1992, ch 158, § 21.
34A-2-24. Discharge of wastes allowed when economic or social necessity found--Exception.
Notwithstanding § 34A-2-22, discharge of wastes into waters of the state which reduce the quality of such waters below the water quality level existing on March 27, 1973, will be allowed if it is affirmatively demonstrated to the board and the board finds by a majority vote of its members, after a public hearing on such request, that there may be a discharge, if the discharge will not result in the violation of applicable water standards, and if the discharge is found justifiable as a result of necessary economic or social development. The board may not allow a discharge if the discharge results in a violation of the existing water standards.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL § 46-25-6; SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-42; SL 1988, ch 285, § 4A; SL 2011, ch 165, § 39.
34A-2-25. Technology considered in determining economic justification for waste.
In determining the justification for economic development under § 34A-2-24, the board shall consider and require in its decision, technology reasonably available for all discharges into that segment of state waters affected by the decision, which will result in further progress toward the goal of eliminating the discharge of all wastes.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-43; SL 1988, ch 285, § 5.
34A-2-26. Biennial review of decisions to allow discharge waste.
A decision issued pursuant to § 34A-2-24 shall be reviewed at least every two years.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-44; SL 1988, ch 285, § 6.
34A-2-27. Construction permits required for activities discharging wastes into water--Violation.
No person may carry on any of the following activities without a valid construction permit from the water management board for the disposal of all wastes which are, or may be, discharged thereby into the groundwaters of the state, nor may any person carry on any of the following activities without approval of plans and specifications from the secretary of the department pursuant to § 34A-2-29 for the disposal of all wastes which are, or may be, discharged thereby into surface waters of the state:
(1) The construction, installation, modification, or operation of any disposal system or part thereof, or any extension or addition thereto;
(2) The increase in volume or strength of any wastes in excess of the permissive discharge specified under any existing permit;
(3) The construction, installation, or operation of any industrial, commercial, or other establishment, or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the groundwaters of the state or would otherwise alter the physical, chemical, or biological properties of any groundwaters of the state in any manner not already lawfully authorized; or
(4) The construction or use of any new outlet for the discharge of any waters into the waters of the state.
A violation of this section is subject to § 34A-2-75.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL, § 46-25-6; SL 1973, ch 280, § 8 (4); SDCL Supp, § 46-25-45; SL 1977, ch 190, § 637; SL 1984, ch 243, § 5; SL 1991, ch 288, § 15; SL 1992, ch 158, § 23.
34A-2-28. Rules for permits to discharge wastes--Plans and specifications for disposal systems--Violation.
The board shall promulgate rules pursuant to chapter 1-26 governing application, public notice, and public participation for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems.
A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 4 (6); SDCL Supp, § 46-25-46; SL 1992, ch 158, § 24; SL 1993, ch 256, § 12.
34A-2-29. Plans, specifications, and information required by secretary.
The secretary, under such conditions as the secretary may prescribe, may require the submission of such plans, specifications, and other information as the secretary deems necessary to carry out the provisions of this chapter or to carry out rules promulgated pursuant to the provisions of this chapter.
Source: SL 1973, ch 280, § 8 (4); SDCL Supp, § 46-25-47; SL 2011, ch 165, § 40.
34A-2-30. Rules regarding permit procedure.
The board shall promulgate rules pursuant to chapter 1-26 regarding the issuance, denial, modification, or revocation of permits governed by this chapter.
Source: SL 1973, ch 280, § 4 (7); SDCL Supp, § 46-25-48; SL 1993, ch 256, § 13.
34A-2-31. Issuance, revocation, or denial of permits to discharge waste.
The secretary shall issue, suspend, revoke, modify, or deny permits to discharge sewage, industrial wastes, or other wastes to state waters, consistent with provisions of this chapter and with rules promulgated by the board pursuant to chapter 1-26.
Source: SL 1973, ch 280, § 6 (1); SDCL Supp, § 46-25-49; SL 1993, ch 256, § 14.
34A-2-32. Examination and approval or disapproval of plans for discharge of waste--Changes in plans.
The secretary shall examine and approve or disapprove plans and other information needed to determine whether a permit should be issued or suggest changes in plans as a condition to the issuance of a permit.
Source: SL 1973, ch 280, § 6 (2); SDCL Supp, § 46-25-50.
34A-2-33. Certification of compliance with federal pollution control requirements.
The secretary may certify, in accordance with rules promulgated by the board pursuant to chapter 1-26, that an applicant for a federal license or permit necessary to conduct any activity which may result in a discharge into waters of the state has satisfactorily shown that the applicant will comply with sections 301, 302, 306, and 307 of the Federal Water Pollution Control Act as amended to January 1, 2011. This section and § 34A-2-34 shall be interpreted to implement the purposes of section 401 of the Federal Water Pollution Control Act as amended to January 1, 2011.
Source: SL 1976, ch 285, § 1; SDCL Supp, § 46-25-50.1; SL 1986, ch 295, § 10; SL 1988, ch 285, § 6A; SL 1993, ch 256, § 15; SL 2011, ch 165, § 41.
34A-2-34. Rules for grant or denial of certification--Procedural requirements of rules.
The board shall promulgate rules pursuant to chapter 1-26 establishing procedures which the secretary shall follow in granting or denying certification under § 34A-2-33. The rules may not exceed minimum federal regulations. The rules shall require adequate public notice of an application for certification within an area no smaller than the county where the activity is located, opportunity for public participation in the decision-making process on an application for certification, and opportunity and procedures for contested case hearings on applications for certification in conformity with chapter 1-26.
Source: SL 1976, ch 285, § 1; SDCL Supp, § 46-25-50.2; SL 1993, ch 256, § 16.
34A-2-35. Public hearing on permit to discharge waste--Notice--Uncontested recommendation.
Before issuing any permit pursuant to § 34A-2-36, the secretary shall provide an opportunity for public hearing, with notice of the opportunity for hearing, in accordance with applicable laws, rules, and regulations. If the recommendation of the department pursuant to § 34A-2-24, 34A-2-27, or 34A-2-36, is not contested, that recommendation shall become a final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with the recommendation.
Source: SL 1973, ch 280, § 9 (1); SDCL Supp, § 46-25-51; SL 1991, ch 288, § 14; SL 2011, ch 165, § 42.
34A-2-36. Permit to discharge waste into surface waters required--Issuance--Maximum duration--Standards to be met--Violation.
No person may discharge any waste, pollutant, or combination of pollutants, into surface waters from a point source without a permit consistent with rules promulgated by the board pursuant to chapter 1-26 and this chapter. A violation of this section is subject to § 34A-2-75.
The secretary may, after notice and opportunity for public hearing, issue a permit for the discharge of any waste, pollutant, or combination of pollutants into surface waters, for a period not to exceed five years, or for a period not to exceed ten years for a concentrated animal operation that is not required to have a permit under 40 C.F.R. § 122.23(d)(1), as of January 1, 2021, upon condition that such discharge meets or will meet all applicable state and federal water quality standards and effluent standards and all other requirements of this chapter. A violation of a condition of a permit issued pursuant to this section is subject to § 34A-2-75.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL, § 46-25-6; SL 1973, ch 280, § 9; SDCL Supp, § 46-25-52; SL 1988, ch 285, § 7; SL 1992, ch 158, § 25; SL 1993, ch 256, § 17; SL 2021, ch 161, § 1.
34A-2-36.1. Permit to discharge waste into underground waters--Issuance--Maximum duration--Standards to be met--Violation.
The secretary may, after notice and opportunity for public hearing, issue a permit for the discharge of any waste, pollutant, or combination of pollutants into underground waters, for a period not to exceed five years, upon condition that such discharge meets or will meet all applicable state and federal water quality standards and all other requirements of this chapter. A violation of a condition of a permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1988, ch 285, § 7A; SL 1992, ch 158, § 25A.
34A-2-36.2. Concentrated animal feeding operation--Permit.
Each concentrated animal feeding operation, as defined by 40 C.F.R. § 122.23 (January 1, 2023), shall operate under a general or individual water pollution control permit, issued pursuant to § 34A-2-36.
Source: SL 2007, ch 203, § 1; SL 2023, ch 131, § 1.
34A-2-36.3. Permit required for large operations.
If an operation processes or stores manure, or processes or stores process wastewater, as those terms are defined in 40 C.F.R. § 122.23 (January 1, 2023), without coverage under a concentrated animal feeding operation's general or individual water pollution control permit issued pursuant to §§ 34A-2-36 and 34A-2-36.2, and if the maximum number of permitted or unpermitted animals from which manure or process wastewater is processed or stored would meet the definition of a large concentrated animal feeding operation, under 40 C.F.R. § 122.23 (January 1, 2023), that operation must obtain its own general or individual water pollution permit pursuant to § 34A-2-36.
Source: SL 2023, ch 131, § 2.
34A-2-37. Effluent limitations enforced in issuance of permits.
The secretary shall require as permit conditions under § 34A-2-36 the achievement of:
(1) Effluent limitations based upon the application of such levels of treatment, technology, and processes as are required under the Federal Water Pollution Control Act, as amended to January 1, 2011;
(2) Any more stringent effluent limitations necessary to meet water quality criteria established pursuant to any state or federal law, rule, or regulation.
Effluent limitations prescribed under this section shall be achieved in the shortest reasonable period of time consistent with state or federal law, and any regulations or rules promulgated thereunder.
Source: SL 1973, ch 280, § 9 (2); SDCL Supp, § 46-25-53; SL 1993, ch 256, § 18; SL 2011, ch 165, § 43.
34A-2-38. Limitations on volume and strength of waste discharged under permit--Specification of limitations and conditions.
The secretary shall clearly specify in any permit any limitations imposed as to the volume, strength, and other significant characteristics of the waste to be discharged consistent with provisions of §§ 34A-2-35 to 34A-2-43, inclusive. The secretary shall specify in the permit any limitations and conditions that may be necessary to ensure the proper use and disposal of sewage sludge.
Source: SL 1973, ch 280, § 6 (3); SDCL Supp, § 46-25-54; SL 1992, ch 254, § 92.
34A-2-39. Schedules of compliance in permits for discharge.
The secretary may set and revise schedules of compliance and include such schedules within the terms and conditions of permits for discharge of wastes.
Source: SL 1973, ch 280, § 9 (3) (a); SDCL Supp, § 46-25-55; SL 1988, ch 285, § 8.
34A-2-39.1. Extension of time to meet quality and effluent standards.
The secretary may issue an extension to a point source or nonpoint source discharger, in which to meet state water quality standards or effluent standards if the extension is not in conflict with federal law, and if it is determined that:
(1) The violation was the result of actions or conditions outside the control of the discharger;
(2) The discharger has acted in good faith;
(3) There has been a commitment of necessary resources to achieve compliance at the earliest date probable;
(4) The extension would not result in imposition of any additional controls on any other point or nonpoint source;
(5) Facilities necessary for compliance are under construction and will be completed at the earliest date probable.
Source: SL 1978, ch 261; SL 1988, ch 285, § 9; SL 2011, ch 165, § 44.
34A-2-40. Recording, reporting and inspection conditions in permit to discharge.
The secretary, in accordance with rules promulgated by the board pursuant to chapter 1-26, may prescribe terms and conditions for permits issued under this chapter to ensure compliance with applicable state and federal effluent standards and water quality standards, including requirements concerning recording, reporting, monitoring, entry, and inspection to the extent allowed under this chapter.
Source: SL 1973, ch 280, § 9 (3) (b); SDCL Supp, § 46-25-56; SL 1988, ch 285, § 10; SL 1993, ch 256, § 19.
34A-2-41. Conditions in permits issued for publicly owned treatment works.
The secretary, in accordance with rules promulgated by the board pursuant to chapter 1-26, may impose as conditions in permits for the discharge of wastes from publicly owned treatment works appropriate measures to establish and ensure compliance by industrial users with pretreatment standards, and any system of user charges required under state or federal law or any regulations or rules promulgated thereunder.
Source: SL 1973, ch 280, § 9 (3) (d); SDCL Supp, § 46-25-57; SL 1988, ch 285, § 11; SL 1993, ch 256, § 20.
34A-2-42. Changes to be reported under permit for publicly owned treatment works.
The secretary may impose as conditions in permits for the discharge of wastes from publicly owned treatment works requirements for information to be provided by the permittee concerning new introductions of wastes or substantial changes in the volume or character of wastes being introduced into such treatment works.
Source: SL 1973, ch 280, § 9 (3) (c); SDCL Supp, § 46-25-58; SL 1988, ch 285, § 12.
34A-2-43. Discharges which may not be authorized by permit.
No permit may be issued authorizing any of the following discharges:
(1) The discharge of any radiological, chemical, or biological warfare agent or high level radioactive waste;
(2) Any discharge which the secretary of the army, acting through the chief of engineers, finds would substantially impair anchorage and navigation of any waters of the United States;
(3) Any discharge to which the administrator of the Environmental Protection Agency has objected, pursuant to any right provided to the administrator under the Federal Water Pollution Control Act, as amended to January 1, 2011;
(4) Any discharge which is in conflict with an areawide waste treatment management plan, approved under the Federal Water Pollution Control Act, as amended to January 1, 2011.
Source: SL 1973, ch 280, § 9 (4); SDCL Supp, § 46-25-59; SL 2011, ch 165, § 45.
34A-2-44. Records, monitoring and reporting required on pollution sources.
The secretary may require the owner or operator of any point source, including an industrial user of a publicly owned treatment works, to:
(1) Establish and maintain records;
(2) Prepare and submit reports;
(3) Install, use, and maintain monitoring equipment or methods, including, where appropriate, biological monitoring methods;
(4) Sample effluents; and
(5) Provide such other information as the secretary may reasonably require.
Source: SL 1973, ch 280, § 6 (7); SDCL Supp, § 46-25-60; SL 1988, ch 285, § 13.
34A-2-45. Inspection powers with respect to pollution sources.
The secretary shall, at reasonable times, have access to any point source, including an industrial user of a publicly owned treatment works, and copy any records, inspect any monitoring equipment or method required under § 34A-2-44, to sample any effluents being discharged into the waters of the state, or to ensure compliance with the provisions of this chapter.
Source: SL 1973, ch 280, § 6 (9); SDCL Supp, § 46-25-61; SL 1988, ch 285, § 14.
34A-2-46. Right of entry on premises where pollution produced.
The secretary may enter, upon presentation of proper credentials upon any premises in which a point source, including an industrial user of a publicly owned treatment works, is located, or in which any records required to be maintained pursuant to § 34A-2-44 are located.
Source: SL 1973, ch 280, § 6 (8); SDCL Supp, § 46-25-62; SL 1988, ch 285, § 15.
34A-2-48. Orders to clean up material spilled--Violation.
The secretary shall issue orders to any person to clean up any material which the person or the person's employee, agent, or subcontractor had accidentally or purposely dumped, spilled, or otherwise deposited in or in such proximity to state waters that they may pollute state waters. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 6 (6); SDCL Supp, § 46-25-64; SL 1992, ch 158, § 25B; SL 1993, ch 34, § 4; SL 2011, ch 165, § 46.
34A-2-49. Grounds for revocation, suspension, or modification of permit.
Any permit issued pursuant to this chapter may be revoked, modified, or suspended, in whole or in part, during its term for cause, including the following:
(1) Violation of any condition of the permit;
(2) Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; or
(3) Change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.
Source: SL 1973, ch 280, § 9 (5); SDCL Supp, § 46-25-65; SL 2011, ch 165, § 47.
34A-2-50. Notice of denial, revocation, suspension, or modification of permit--Hearing--Decision by secretary.
If the secretary recommends denial of an application for a permit, or revokes, suspends, or modifies a permit, the secretary shall give written notice of the action to the applicant or holder, who may request a hearing before the secretary. The hearing shall be held within thirty days after receipt of written request. The secretary may affirm, modify, or reverse the secretary's initial decision based upon the evidence presented at the hearing.
Source: SL 1973, ch 280, § 9 (6); SDCL Supp, § 46-25-66; SL 1988, ch 285, § 16; SL 2011, ch 165, § 48.
34A-2-51. Effective date of revocation, suspension, or modification of permit.
Modification, revocation, or suspension of a permit shall be effective thirty days after issuance, unless a later date is specified. If the holder requests a hearing before the secretary, the order of modification, revocation, or suspension shall be effective twenty days after final determination by the secretary.
Source: SL 1973, ch 280, § 9 (6); SDCL Supp, § 46-25-67; SL 1988, ch 285, § 17.
34A-2-52. Procedural requirements in dealing with violations.
The procedures set forth in §§ 34A-2-53 to 34A-2-60, inclusive, shall be followed in addition to the procedures outlined by chapter 1-26.
Source: SL 1973, ch 280, § 11; SDCL Supp, § 46-25-68.
34A-2-53. Notice to correct violations--Contents--Civil penalty.
If the secretary has reason to believe that a violation of this chapter or any rule made or permit issued under it is threatened or has occurred, the secretary shall cause written notice to be served personally or by mail upon the alleged violator or the alleged violator's agent. The notice shall state the provisions alleged to be violated, the facts alleged to constitute a violation, the nature of any corrective action proposed to be required, and the time within which such action is to be taken. For the purpose of this chapter, service by mail is deemed complete on the date of mailing.
Any person who violates an order issued pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL § 46-25-12; SL 1973, ch 280, § 11 (1); SDCL Supp, § 46-25-69; SL 1988, ch 285, § 18; SL 1992, ch 158, § 26; SL 2011, ch 165, § 49.
34A-2-54. Hearing on violation--Notice.
In a notice given under § 34A-2-53, the secretary may also require the alleged violator to appear for a public hearing to be conducted before the board, and to answer the charges made against the alleged violator. In such event, the notice shall also meet the requirements of § 1-26-17, and notice shall be given in a manner which will reasonably inform the public.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL § 46-25-12; SL 1973, ch 280, § 11 (2); SDCL Supp, § 46-25-70; SL 1988, ch 285, § 19; SL 2011, ch 165, § 50.
34A-2-55. Time of hearing on violation--Respondent's request for change of time.
A hearing pursuant to § 34A-2-54 shall be held no sooner than fifteen days after service of the notice, except that the board may set an earlier date for the hearing if they are requested to do so by the alleged violator. The board may set a later date for the hearing at the request of the alleged violator, if the alleged violator shows good cause for delay.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL, § 46-25-12; SL 1973, ch 280, § 11 (2); SDCL Supp, § 46-25-71; SL 1988, ch 285, § 20.
34A-2-56. Respondent's request for hearing on violation--Time of filing--Time of hearing.
If the secretary does not require an alleged violator to appear for a public hearing pursuant to § 34A-2-54, the alleged violator may request the board to conduct such a hearing. Such request shall be in writing and shall be filed with the board no later than thirty days after service of a notice under § 34A-2-53. If such a request is filed, a hearing shall be held within forty-five days.
Source: SL 1973, ch 280, § 11 (3); SDCL Supp, § 46-25-72; SL 1988, ch 285, § 21.
34A-2-57. Procedure in hearing on violation--Venue.
If a hearing is held pursuant to the provisions of § 34A-2-54 or 34A-2-56, it shall be treated as a contested case in accordance with chapter 1-26 and may be held in any county in which the violation is alleged to have occurred.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL, § 46-25-12; SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-73.
34A-2-58. Parties permitted to appear and present evidence at hearing on violation.
The board shall permit all parties to respond to the notice served under § 34A-2-53, and all other interested parties, to present evidence and argument on all issues, and to conduct cross-examination required for full disclosure of the facts.
Source: SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-74; SL 1988, ch 285, § 22.
34A-2-59. Record of hearing on violation.
The board shall keep a record of the hearing as required by chapter 1-26, and at least one copy of any written exhibits put in evidence.
Source: SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-75; SL 1988, ch 285, § 23.
34A-2-60. Board's decision and order to abate pollution--Times prescribed in order--Civil penalty for violation.
After a hearing, or on the failure of an alleged violator to make a timely request for a hearing, the board may issue an appropriate decision in compliance with § 1-26-25 and an order for the prevention, abatement, or control of pollution. The order shall state the date or dates by which any violation shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the pollution.
Any person who violates an order issued pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0113; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0149; SL 1966, ch 260, § 4; SDCL, § 46-25-13; SL 1973, ch 280, § 11 (5); SDCL Supp, § 46-25-76; SL 1988, ch 285, § 24; SL 1992, ch 158, § 27.
34A-2-64. Order not stayed by appeal--Findings required to grant stay.
Notwithstanding the provisions of § 1-26-32, an appeal may not stay the effectiveness of any order of the board, unless the court finds that there is probable cause to believe that refusal to grant a stay will cause serious harm to the affected party, and that the threatened violation or violation will not continue or, if it does continue, any harmful effects on waters will be remedied immediately on the cessation of the violation.
Source: SL 1973, ch 280, § 12 (3); SDCL Supp, § 46-25-80; SL 1988, ch 285, § 28.
34A-2-65. Judicial enforcement of order pending appeal.
If the court does not stay the effectiveness of an order of the board, it may enforce compliance with that order by issuing a temporary restraining order or an injunction at the request of the board.
Source: SL 1973, ch 280, § 12; SDCL Supp, § 46-25-81.
34A-2-66. Legal representation of board in appeal.
In any appeal from the board, the attorney general shall represent the board, if requested, or the board may appoint special counsel for the proceedings, subject to the approval of the attorney general.
Source: SL 1973, ch 280, § 12 (1); SDCL Supp, § 46-25-82.
34A-2-67. Appeal bond not required of state or board.
Neither the state nor the board need give a bond or make a deposit for costs upon an action for judicial review or upon any subsequent appeal.
Source: SL 1973, ch 280, § 12 (2); SDCL Supp, § 46-25-83.
34A-2-68. Emergency order by secretary to stop pollution--Effective immediately--Preventive action by secretary--Violation.
No person may violate this chapter or any rule issued pursuant to this chapter, or commit an act which will cause substantial pollution, the harmful effects of which cannot be remedied immediately after the commission or cessation of the act. The secretary may order the person to stop, avoid, or moderate the act so that it is in compliance with this chapter or the substantial injury will not occur. The order is effective immediately upon receipt by the person to whom it is directed, unless the secretary provides otherwise. If the order is not complied with in a timely manner, the secretary may contain and recover pollutants to limit or prevent pollution of any state waters. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-84; SL 1984, ch 244, § 1; SL 1988, ch 285, § 29; SL 1992, ch 158, § 27A.
34A-2-69. Notice of emergency order.
Notice of an order pursuant to § 34A-2-68 shall conform to the requirements of §§ 34A-2-53 to 34A-2-60, inclusive, so far as practicable; the notice shall indicate that the order is an emergency order.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-85.
34A-2-70. Hearing on emergency order--Time and procedure for hearing.
Upon issuing an order pursuant to § 34A-2-68, the secretary shall fix a place and time for a hearing before the board, not later than five days thereafter, unless the person to whom the order is directed requests a later time. The secretary may deny a request for a later time if the secretary finds that the person to whom the order is directed is not complying with the order. The hearing shall be conducted by the board in the manner specified in §§ 34A-2-53 to 34A-2-60, inclusive.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-86; SL 1988, ch 285, § 30; SL 2011, ch 165, § 51.
34A-2-71.1. Investigation of discharge polluting state waters--Responsible person.
If the department has determined that a discharge that may cause or has caused the pollution of state waters has occurred, the department shall conduct an investigation to determine the responsible person. The investigation may include a title search of the affected property and shall attempt to designate as the responsible person the person deemed to be the most responsible for the occurrence of the discharge. If the identity of the person who caused the discharge can be determined, that person shall be designated as the responsible person. If the identity of the person who caused the discharge cannot be determined, the owner of the property or operator of the tank at the time of the discharge shall be designated as the responsible person. If the person deemed responsible for the discharge contests the department's decision, a title search of the affected property shall be done.
Source: SL 1989, ch 309, § 2; SL 1990, ch 290, § 2.
34A-2-72. Action in circuit court for immediate restraint of pollution.
In the alternative, upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment to welfare is to the livelihood of such persons, or that a person is violating or threatening to violate any of the provisions of this chapter, the secretary may bring suit on behalf of the state in the circuit court in which the violation is taking place to immediately restrain any person violating or threatening to violate this chapter, or causing or contributing to the alleged pollution, or to take such other action as may be necessary.
Source: SDC 1939, § 61.0115; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0151; SL 1966, ch 260, § 5; SDCL, § 46-25-15; SL 1973, ch 280, § 15; SDCL Supp, § 46-25-88; SL 1988, ch 285, § 32.
34A-2-73. Action by department to enjoin violations--Temporary injunction and restraining order.
The department may bring an action without furnishing of bond, for an injunction against the continuation of any threatened or actual violation, or against any person who fails to comply with an emergency order issued by the secretary by virtue of § 34A-2-68, or any final order of the secretary or board. The court to which the department applies for an injunction may issue a temporary injunction, if it finds that 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 1973, ch 280, § 16; SDCL Supp, § 46-25-89; SL 1988, ch 285, § 33.
34A-2-74. Initiation of action to recover penalties.
In addition to or instead of issuing an order, the secretary or board may initiate appropriate action for recovery of a penalty, pursuant to §§ 34A-2-75 to 34A-2-79, inclusive.
Source: SL 1973, ch 280, § 11 (8); SDCL Supp, § 46-25-90.
34A-2-75. Violations classified as misdemeanor--Criminal and civil penalties.
Any person subject to this section, as provided in this chapter, is guilty of a Class 1 misdemeanor. In addition to a jail sentence authorized by § 22-6-2, a Class 1 misdemeanor imposed by this chapter is subject to a criminal fine not to exceed ten thousand dollars per day of violation. The violator is also subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0115; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0151; SL 1966, ch 260, § 5; SDCL § 46-25-16; SL 1973, ch 280, § 14 (1); SDCL Supp, § 46-25-91; SL 1977, ch 190, § 638; SL 1984, ch 243, § 6; SL 1988, ch 285, § 34; SL 1992, ch 158, § 28; SL 2011, ch 165, § 52.
34A-2-77. False representation or tampering with monitoring device prohibited--Violation.
No person may make any false statement, representation, or certification in any document filed or required to be maintained under this chapter, or falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter. A violation of this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 14 (2); SDCL Supp, § 46-25-93; SL 1977, ch 190, § 639; SL 1984, ch 243, § 7; SL 1992, ch 158, § 30.
34A-2-78. Alternative remedies not barred by invoking penalties.
Any action pursuant to § 34A-2-75 or 34A-2-77 does not bar enforcement of the chapter, or of rules or orders issued pursuant to it by injunctive or other appropriate remedy.
Source: SL 1973, ch 280, § 14 (4); SDCL Supp, § 46-25-94; SL 1992, ch 158, § 31.
34A-2-79. Remedies under chapter alternative to remedies under other law.
A purpose of this chapter is to provide additional and cumulative remedies to prevent, abate, and control the pollution of state waters. Nothing in this chapter abridges or alters any rights or action of remedies in equity or under the common law or statutory law, criminal or civil, nor may any provision of this chapter be construed as estopping the state or any municipality or person as owners of water rights or otherwise in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.
Source: SL 1973, ch 280, § 14 (5); SDCL Supp, § 46-25-95; SL 2011, ch 165, § 53.
34A-2-82. Acceptance of grants for water pollution control.
The secretary shall accept grants from the federal government and from other sources to carry out the provisions of this chapter.
Source: SL 1973, ch 280, § 6 (10); SDCL Supp, § 46-25-98.
34A-2-93. Promulgation of rules by board.
The board may promulgate rules pursuant to chapter 1-26:
(1) To establish surface and ground water quality standards;
(2) To establish design and installation requirements for on-site wastewater systems;
(3) To establish criteria for water pollution control facilities, to include facilities constructed for the protection and monitoring of groundwater;
(4) To establish the present and future beneficial uses of all waters under this chapter;
(5) To establish procedures for granting variances from water quality standards;
(6) To establish procedures for conducting inspections;
(7) To establish contested case procedures;
(8) To establish secondary treatment standards for wastewater facilities;
(9) To establish standards for surface water discharge permits;
(10) To establish pretreatment standards and requirements for local pretreatment programs;
(11) To establish standards for aboveground and underground storage tanks;
(12) To establish financial responsibility requirements for owners of underground and aboveground storage tanks;
(13) To establish standards for the remediation and cleanup of contaminated soils. The standards relating to cleanup of petroleum contamination must be based upon risk to human health and safety, as determined by the board. The board may adopt standards relating to cleanup of contamination, consistent with the American Society for Testing and Materials Standard E1739-95R15, Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites, as in effect on January 1, 2024, or other generally accepted risk-based cleanup methods;
(14) To establish standards for bulk chemical storage facilities;
(15) To establish requirements for underground injection control;
(16) To establish a groundwater discharge permit program;
(17) To establish a delegated national pollutant discharge elimination system program, as provided for under 40 C.F.R. Part 123 (January 1, 2024) and wastewater pretreatment program, as provided for under 40 C.F.R. Part 403 (January 1, 2024);
(18) To establish a priority listing for projects funded under the construction grant program; and
(19) To establish requirements for approval of plans for water pollution control facilities and water supply systems.
The board shall hold any hearings necessary for the proper administration of this chapter and initiate any action in court for the enforcement of this chapter.
Source: SL 1971, ch 209, § 5; SDCL Supp, § 46-25-22; SL 1973, ch 280, § 4 (8) to (10); SL 1973, ch 281, § 4; SDCL Supp, § 46-25-107; SL 1993, ch 256, § 22; SL 1995, ch 204, § 1; SL 2011, ch 165, § 57; SL 2024, ch 145, § 1.
34A-2-94. Public availability of records and information obtained under chapter--Trade secrets exception.
Any records, reports, or information obtained under this chapter shall, in the case of effluent data, be related to any applicable effluent limitations, pretreatment, or new source performance standards, and shall be available to the public. However, upon a showing satisfactory to the secretary by any person that records, information, or particular part thereof (other than effluent data, permit applications, and permits) to which the secretary has access under this chapter, if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the secretary shall consider the record, report, or information, or particular portion of the record, report, or information, confidential, except that such record, report, or information may be disclosed to other officers, employees, or authorized representatives of the state or federal government concerned with carrying out this chapter, or when relevant, in any proceeding under this chapter.
Source: SL 1973, ch 280, § 13; SDCL Supp, § 46-25-108; SL 1988, ch 285, § 36; SL 2011, ch 165, § 58.
34A-2-96. Petroleum substances discharged into state waters--Liability for containment and recovery costs--Violation.
The owner or operator of a facility or vehicle that stores or transports petroleum substances is responsible for the costs of containment and recovery ordered by the secretary and incurred by the state as a result of a discharge of the petroleum substances into state waters. Any person causing the discharge shall be strictly liable to the owner or operator for all costs and proximate damages resulting from the discharge. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1984, ch 244, § 2; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 158, § 31A; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-97. Petroleum substances discharged into state waters--Notice to secretary required--Restriction on use of information in criminal proceeding--Violation.
The owner or operator of a facility or vehicle that discharges a petroleum substance into state waters shall notify the secretary of agriculture and natural resources upon knowledge of the release. Notification received pursuant to this section and information obtained in the investigation of the notification may not be used in a criminal proceeding filed against the owner or operator, except in a prosecution for perjury or for giving a false statement. A violation of this section is subject to § 34A-2-75.
Source: SL 1984, ch 244, § 3; SL 1992, ch 158, § 31B; SL 2005, ch 10, § 26; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-98. Underground storage tanks--Definitions.
Terms used in this section and § 34A-2-99 mean:
(1) "Department," Department of Agriculture and Natural Resources;
(2) "Local designated agencies," agencies of subdivisions of state government which are designated by the Governor to carry out specific portions of this section and § 34A-2-99;
(3) "Nonoperational storage tank," any underground storage tank in which regulated substances may not be deposited or from which regulated substances may not be dispensed;
(4) "Regulated substance," any substance defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601(14) (January 1, 2024), but not including any substance regulated as a hazardous waste under subtitle (C), and petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure, 60 degrees Fahrenheit and 14.7 pounds per square inch absolute; and
(5) "Underground storage tank," any tank or combination of tanks, including connected underground pipes, which contains an accumulation of regulated substances, and the volume of which, including the volume of the connected underground pipes, is ten percent or more beneath the surface of the ground. This term does not include:
(a) A farm or residential tank with a capacity of one thousand one hundred gallons or less used for storing motor fuel for noncommercial purposes;
(b) A tank used for storing heating oil for consumptive use on the premises where stored;
(c) A septic tank;
(d) A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 60101 et seq. (January 1, 2024), the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. § 60101 et seq. (January 1, 2024), or a pipeline which is an intrastate pipeline facility regulated under state laws comparable to the provisions of law referred to above;
(e) A surface impoundment, pit, pond or lagoon;
(f) A storm water or wastewater collection system;
(g) A flow-through process tank;
(h) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;
(i) A storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel if the storage tank is situated upon or above the surface of the floor; and
(j) Any pipes connected to any tank described in subsections (a) to (i), inclusive, of this subdivision.
Source: SL 1985, ch 284, § 1; SL 2011, ch 165, § 60; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 145, § 2.
34A-2-99. Underground storage tanks--Promulgation of rules--Violation.
The board shall promulgate rules, pursuant to chapter 1-26, to develop:
(1) Requirements for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;
(2) Requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing system;
(3) Requirements for the reporting of any releases and corrective action taken in response to a release from an underground storage tank;
(4) Requirements for taking corrective action in response to a release from an underground storage tank. The standards relating to cleanup of petroleum contamination must be based upon risk to human health and safety as determined by the board. The board may adopt standards relating to cleanup of contamination consistent with the American Society for Testing and Materials Standard E1739-95R15, Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites, as in effect on January 1, 2024, or other generally accepted risk-based cleanup methods;
(5) Requirements for the closure of tanks to prevent future releases of regulated substances to the environment;
(6) Requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank;
(7) Standards of performance for new underground storage tanks;
(8) Requirements for notifying the department or local designated agency of the existence of any operational or nonoperational underground storage tank;
(9) Requirements for providing the information required on the form issued pursuant to the Regulation of Underground Storage Tanks, 42 U.S.C. § 6991a(b)(2) (January 1, 2024).
A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1985, ch 284, § 2; SL 1992, ch 158, § 31C; SL 1995, ch 204, § 2; SL 2011, ch 165, § 61; SL 2024, ch 145, § 3.
34A-2-100. Above ground stationary storage tank defined.
The term, above ground stationary storage tank, as used in this section and §§ 34A-2-101 and 34A-2-102 means any stationary tank or combination of stationary tanks above ground, including connected pipes, which stores an accumulation of regulated substances as defined in § 34A-2-98.
This term does not include:
(1) Any farm or residential tank used for storing motor fuels for noncommercial purposes;
(2) Any tank used for storing heating oil or motor fuels for consumptive use on the premises where stored;
(3) Any septic tank;
(4) Any pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 60101 et seq. (January 1, 2024);
(5) Any surface impoundment, pit, pond, or lagoon;
(6) Any storm water or wastewater collection system;
(7) Any flow-through process tank;
(8) Any liquid trap or associated gathering lines directly related to oil and gas production and gathering operations;
(9) Any storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel if the storage tank is situated upon or above the surface of the floor;
(10) Any pipes connected to any tank which is exempted in this subdivision; and
(11) Any tanks used for storing pesticides regulated under chapter 38-21, except those regulated pursuant to Subtitle I of the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6901 et seq. (January 1, 2024).
Source: SL 1987, ch 258, § 1; SL 2011, ch 165, § 62; SL 2024, ch 145, § 4.
34A-2-101. Promulgation of rules--Public health and water protection--Violation.
The board shall promulgate rules, pursuant to chapter 1-26, to develop procedures necessary to safeguard the public health and welfare and prevent pollution of the waters of the state from the leakage, spillage, release, or discharge of regulated substances from above ground stationary storage tanks. These rules must be exercised in substantial conformity with the codes and standards recommended by the National Fire Protection Association, as contained in NFPA30, Flammable and Combustible Liquids Code (January 1, 2024), and NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages (January 1, 2024). The rules must provide:
(1) Requirements for maintaining a leak detection system, an inventory system, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;
(2) Requirements for maintaining records of any monitoring or leak detection system or inventory control system;
(3) Requirements for the reporting of any releases and corrective action taken in response to a release from any above ground stationary storage tank;
(4) Requirements for taking corrective action in response to a release from any above ground stationary storage tank;
(5) Requirements for the closure of tanks to prevent future releases of regulated substances to the environment;
(6) Requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating any above ground stationary storage tank;
(7) Standards of performance, including design, construction, installation, and compatibility standards for new above ground stationary storage tanks;
(8) Requirements for notifying the department or local designated agency of the existence of any operational or nonoperational above ground stationary storage tank; and
(9) Requirements for providing tank information required on the form provided by the department.
A violation of these rules is subject to § 34A-2-75.
Source: SL 1987, ch 258, § 2; SL 1992, ch 158, § 32; SL 2011, ch 165, § 63; SL 2024, ch 145, § 5.
34A-2-102. Installation of above ground stationary storage tank for storage of regulated substances prohibited--Exceptions--Violation.
No person may install any above ground stationary storage tank for the purpose of storing regulated substances unless the tank will prevent releases due to corrosion or structural failure for the operational life of the tank, is designed in a manner to prevent the release or threatened release of any stored substance, and the material used in the construction or lining of the tank is compatible with the substance to be stored. A violation of this section is subject to § 34A-2-75.
Source: SL 1987, ch 258, § 3; SL 1992, ch 158, § 33.
34A-2-103. Statement of groundwater protection strategy--Coordination of activities.
The state, under various statutes, has the established authority to provide for groundwater protection and pollution control. Under this chapter, the state has initiated a groundwater protection strategy that encompasses all waters below the surface of the land in a zone of saturation. This strategy consists of a variety of programs, activities and funds established by this chapter and other related chapters. These functions include chapters 46A-1, 46A-2, and 46A-3A to 46A-3E, inclusive, which provide for the state water plan, the state conservancy district and the establishment of water development districts; chapter 45-2, which provides for geologic surveys; chapters 46-2, 46-2A, 46-5, and 46-6, which provide for the regulation of water rights, including appropriation of water, collection, preservation, and publication of data on groundwater, liability for damages to domestic and municipal wells, and regulation of drilling and construction of drinking water wells; chapter 34A-3A, which provides for the regulation of public drinking water systems; chapter 34A-2, which provides for the protection and control of pollution to the groundwater, and includes groundwater discharge permits, a groundwater quality classification system, groundwater quality standards, underground storage tank and aboveground storage tank regulations, the regulation of wastewater treatment facilities, and the regulation of on-site disposal of wastewater; chapter 1-49, which provides for laboratory services related to environmental control; chapter 34A-13, which provides for a petroleum release compensation fund; chapter 34A-12, which provides for a regulated substance response fund; chapter 34A-6, which provides for the regulation of solid waste; chapter 38-19, which provides for the regulation of the use, storage and handling of fertilizers; chapter 38-21, which provides for the regulation of the use, storage and handling of pesticides; chapter 34A-2A, which provides for the regulation of chemigation; chapter 34A-11, which provides for the regulation of hazardous wastes including special provisions for the regulation of polychlorinated biphenyls; chapter 45-9, which provides for the regulation of oil and gas development, including underground injection control permits; chapters 45-6B and 45-6C, which provide for the regulation of mineral exploration, development, and mine reclamation; chapter 45-6, which provides for the regulation of sand and gravel operations; and chapter 45-6D, which provides for the regulation of uranium exploration. These programs, activities, and funds are all components of the state groundwater protection strategy and are used to maintain and improve the quality of the state's groundwaters. The agencies, departments, and programs responsible for administering these and other groundwater related functions shall coordinate their activities to ensure that comprehensive groundwater protection and management is being efficiently performed. The secretary, under the supervision of the Governor, shall oversee this coordination effort.
Source: SL 1989, ch 306, § 39; SL 2024, ch 145, § 6.
34A-2-104. Legislative findings--Declaration of public policy.
The Legislature finds that groundwater is a resource of immeasurable value to public health and welfare, critical for the provision of water supply needs for domestic, agricultural, industrial, mining, recreational and other beneficial uses of water, and that pollution of groundwater of this state from both point and nonpoint sources constitutes a menace to public health, welfare and the environment, and that there has been an increasing awareness on the part of the public, local governments and the state that groundwater must be protected, that once groundwater is polluted, it is extremely difficult and expensive to clean up, that both strong enforcement and public education are important and necessary components of the state strategy for minimizing and reducing potential pollution sources, and that effective preventive measures and swift response to releases of pollutants minimize groundwater pollution. It is hereby declared to be the public policy of this state to conserve the groundwaters of the state and to protect, maintain and improve the quality thereof for present and future beneficial uses through the prevention of pollution, correction of groundwater pollution problems and close control of limited degradation perimeters permitted for necessary economic or social development.
Source: SL 1989, ch 306, § 40.
34A-2-105. Conditions requiring submission of preventative action plan--Contents--Violation.
Whenever the board has established groundwater discharge limitations pursuant to § 34A-2-24, 34A-2-27, or 34A-2-36, and monitoring data indicate that the ambient groundwater quality has been degraded up to one-half of any permitted increase in pollutant concentration above the ambient concentration, the operator shall submit to the board a preventative action plan which includes an analysis of the discharge in relation to the increasing pollutant concentrations and any preventative actions to be taken to ensure that groundwater limitations will not be violated. A violation of this section is subject to § 34A-2-75.
Source: SL 1989, ch 306, § 40A; SL 1992, ch 158, § 33A.
34A-2-106. Development and administration of certain ongoing programs--Review and revision by secretary.
The secretary shall develop and administer ongoing programs relating to comprehensive evaluation and management of groundwater quantity and quality to further the goals of §§ 34A-2-1, 34A-2-103, and 34A-2-104. The programs shall include the identification of the general location, quantity, and quality of the state's groundwater. The secretary shall periodically review and revise as necessary the groundwater protection strategy to reflect additional knowledge concerning the extent, if any, of groundwater contamination resulting from fertilizers, pesticides, petroleum products and other pollutants, nonpoint sources of groundwater pollution, any practices or sources which may contribute to contamination of groundwater from both point and nonpoint sources, measures to minimize degradation of groundwater quality by pollutants, vulnerability of specific groundwater supplies to pollution, various analytical methods for analyzing petroleum products and other pollutants, nitrate and other pollutant fate and transport mechanisms, and best available and practicable remedial and disposal methods. The secretary shall incorporate this information in public education and technology transfer activities as appropriate.
Source: SL 1989, ch 306, § 41.
34A-2-107. Standards used in prioritizing groundwater prevention efforts--Other factors for consideration.
The secretary shall use the groundwater quality standards promulgated pursuant to §§ 34A-2-10 and 34A-2-11 in prioritizing the groundwater prevention and protection efforts for the state. Other factors that may be considered by the secretary include, but are not limited to, beneficial uses of water, the extent to which a groundwater source supplies or might feasibly supply public water systems or wellhead protection areas established pursuant to § 34A-3A-17, the degree of hazard to public health and welfare, the dependence of local citizens upon groundwater supplies, and the vulnerability of groundwater supplies to contamination.
Source: SL 1989, ch 306, § 45.
34A-2-109. Formation of state management plans for use of fertilizers and pesticides to protect waters and prevent pollution.
In conjunction with state universities and other interested parties, the secretary shall annually review new studies and data that relate to the relationships between fertilizer and pesticide use practices and the quality of waters of the state. From this review, the state shall formulate and revise as necessary state management plans for the use of fertilizers and pesticides that are based on protecting water quality and preventing groundwater pollution. These management plans will be based on use practices within the state as a whole or in specific areas within the state depending on hydrogeological differences, and shall be used by the state in regulating fertilizers and pesticides pursuant to chapters 38-19, 38-20A, and 38-21 in developing future contingency plans, and in performing public education.
Source: SL 1989, ch 306, § 49; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
34A-2-111. Complaint required to be signed.
No inspection or other action pursuant to § 34A-2-40, 34A-2-44, or 34A-2-45 that is based on, or is the result of, a complaint or the provision of information by a member of the general public may be carried out unless the person making the complaint or providing the information signs a complaint. The complaint shall remain confidential with the board and the secretary.
Source: SL 1991, ch 290.
34A-2-112. General permit for category of water pollution control--Secretary issued--Terms and conditions--Suspension, revocation or modification--Violation.
After public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the secretary may issue a general permit for a category of water pollution control. A general permit issued by the secretary may be subject to such terms and conditions for installation, establishment, modification, operation, or abandonment of a category of water pollution control as the secretary finds reasonably necessary to adequately protect the public health, safety, welfare, and the environment of this state. Water pollution control activities conducted in conformity with a general permit do not require a permit issued under § 34A-2-36.
A general permit shall remain in effect for a period of five years, or for a period of ten years for a concentrated animal feeding operation that is not required to have a permit under 40 C.F.R. § 122.23(d)(1), as of January 1, 2021, from the date of issuance or until suspended, revoked, or modified by the secretary. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the secretary, and upon action by the secretary in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit. Any violation of a condition of a general permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1991, ch 288, § 3; SL 1992, ch 254, § 97; SL 1993, ch 257, § 12; SL 1999, ch 180, § 1; SL 2021, ch 161, § 2.
34A-2-113. Procedure for issuance, suspension, revocation and renewal of permits--Hearing--Uncontested recommendation.
The board, by rules adopted in compliance with chapter 1-26, shall provide for the issuance, suspension, revocation and renewal of any permits required under this chapter. Procedures shall provide for a recommendation on such permit by the secretary with an opportunity for a contested case hearing upon protest by the applicant or any person. If the recommendation of the secretary is not contested, that recommendation shall become a final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with his recommendation.
Source: SL 1991, ch 288, § 10; SL 1993, ch 257, § 11.
34A-2-114. Administration of national pollutant discharge elimination system permit program for pretreatment surface water discharge systems--Fee.
In order to enhance economic development, provide improved coordination between governmental agencies, and safeguard the public health, safety, welfare, and the environment of this state through a customer service approach, the department is delegated authority to administer the national pollutant discharge elimination system permit program for all direct and indirect pretreatment surface water discharge systems as provided in section 402 of the Federal Water Pollution Control Act as amended to January 1, 2011. A reasonable fee upon these systems shall be imposed, as provided in §§ 34A-2-117 to 34A-2-120, inclusive, in order to defray the department's costs of administering this program.
Source: SL 1992, ch 254, § 51; SL 2011, ch 165, § 64.
34A-2-115. Sewage sludge, toxic pollutants, and significant industrial user defined.
For purposes of administering the provisions of this chapter, the term, sewage sludge, means any solid, semisolid, or liquid residue removed during the treatment of municipal waste water or domestic sewage. Sewage sludge includes solids removed during primary, secondary, or advanced waste water treatment, scum, septage, portable toilet pumpings, and sewage sludge products. Sewage sludge does not include grit, screenings, or ash generated during the incineration of sewage sludge.
For purposes of administering the provisions of this chapter, the term, toxic pollutants, means any pollutant listed as toxic under section 307(a) of the Federal Water Pollution Control Act as amended to January 1, 2011, or, in the case of "sludge use or disposal practices," any pollutant identified in regulations implementing section 405(d) of the Federal Water Pollution Control Act as amended to January 1, 2011.
For purposes of administering the provisions of this chapter, the term, significant industrial user, means any discharger subject to categorical pretreatment standards and any other industrial user that discharges an average of twenty-five thousand gallons per day or more of process wastewater, excluding sanitary, noncontact cooling and boiler blowdown wastewaters, to the publicly owned treatment works or that contributes a process wastestream which makes up more than five percent of the average dry weather hydraulic or organic capacity of the publicly owned treatment works treatment plant; or one that is designated as such by the secretary on the basis that the industrial user has a reasonable chance of adversely affecting the publicly owned treatment works operation or violating a pretreatment standard or requirement.
Source: SL 1992, ch 254, § 52; SL 2011, ch 165, § 65.
34A-2-116. Development of pretreatment programs for publicly owned treatment works--Assumption of local responsibilities by secretary on request.
A pretreatment program shall be developed for any publicly owned treatment works or combination of publicly owned treatment works operated by the same authority as required by section 307 of the Federal Water Pollution Control Act as amended to January 1, 2011. The owner of any publicly owned treatment works that is required to develop a program may request the secretary to assume local pretreatment responsibilities for that publicly owned treatment works.
Source: SL 1992, ch 254, § 54; SL 2011, ch 165, § 66.
34A-2-117. Annual fee on facilities permitted under the national pollutant discharge elimination system.
There is hereby imposed an annual fee on each facility permitted under the national pollutant discharge elimination system program provisions of section 402 of the Federal Water Pollution Control Act, 33 U.S. C. 1342, as amended to January 1, 2018. The fee shall be assessed as provided in §§ 34A-2-118 to 34A-2-120, inclusive.
Source: SL 1992, ch 254, § 55; SL 2011, ch 165, § 67; SL 2018, ch 212, § 1.
34A-2-118. Publicly-owned treatment works fee schedule.
For publicly-owned treatment works including municipalities, housing subdivisions, trailer parks, and sanitary districts owned by the state or a political subdivision of the state; privately-owned treatment works including housing subdivisions and trailer parks that treat primarily domestic household wastewater; and Ellsworth Development Authority, the fee imposed in § 34A-2-117 shall be based upon the last preceding federal census data for each municipality and the population served by a nonmunicipality or the Ellsworth Development Authority, and the fee table below:
Population Range |
Fee ($) |
25 to 50 |
37 |
51 to 100 |
75 |
101 to 200 |
150 |
201 to 300 |
250 |
301 to 400 |
350 |
401 to 500 |
450 |
501 to 600 |
550 |
601 to 700 |
650 |
701 to 800 |
750 |
801 to 900 |
850 |
901 to 1,000 |
950 |
1,001 to 2,000 |
1,500 |
2,001 to 3,000 |
2,500 |
3,001 to 4,000 |
3,500 |
4,001 to 5,000 |
4,500 |
5,001 to 6,000 |
5,500 |
6,001 to 7,000 |
6,500 |
7,001 to 8,000 |
7,500 |
8,001 to 9,000 |
8,500 |
9,001 to 10,000 |
9,500 |
10,001 to 11,000 |
10,500 |
11,001 to 12,000 |
11,500 |
12,001 to 13,000 |
12,500 |
13,001 to 14,000 |
13,500 |
14,001 to 15,000 |
14,500 |
15,001 to 16,000 |
15,500 |
16,001 to 17,000 |
16,500 |
17,001 to 18,000 |
17,500 |
18,001 to 19,000 |
18,500 |
19,001 to 20,000 |
19,500 |
20,001 to 30,000 |
25,000 |
30,001 to 40,000 |
35,000 |
40,001 to 50,000 |
45,000 |
50,001 to 60,000 |
55,000 |
60,001 to 70,000 |
65,000 |
70,001 to 80,000 |
75,000 |
80,001 to 90,000 |
85,000 |
90,001 to 100,000 |
95,000 |
100,001 or more |
125,000 |
Source: SL 1992, ch 254, § 56; SL 2018, ch 212, § 2.
34A-2-119. Industrial and governmental treatment works fee schedule.
For industrial and governmental treatment works with significant water quality loadings, the fee imposed in § 34A-2-117 is as follows:
(1) Meat products processing as defined by 40 CFR 432 as amended to January 1, 2011:
(a) Process water (0.50 mgd or greater)--$30,000 per year;
(b) Process water (0.25 mgd or greater and less than 0.50 mgd)--$10,000 per year;
(c) Process water (less than 0.25 mgd)--$600 per year; and
(d) Noncontact cooling water--$600 per year;
(2) Corn wet milling as defined by 40 CFR 406 Subpart A as amended to January 1, 2011:
(a) Process water (0.50 mgd or greater)--$30,000 per year;
(b) Process water (0.25 mgd or greater and less than 0.50 mgd)--$10,000 per year;
(c) Process water (less than 0.25 mgd)--$600 per year; and
(d) Noncontact water--$600 per year;
(3) Ore mining and dressing as defined by 40 CFR 440 as amended to January 1, 2011:
(a) Large scale gold and silver mines:
(i) Process water--$30,000 per year; and
(ii) Mine drainage water--$5,000 per year; and
(b) Gold placer mining process water--$5,000 per year;
(4) Mineral mining and processing as defined by 40 CFR 436 as amended to January 1, 2011:
(a) Dimension stone--$600 per year;
(b) Crushed stone--$600 per year;
(c) Sand and Gravel--$600 per year;
(d) Mineral pigments--$600 per year; and
(e) Small scale mines--$600 per year;
(5) Federal treatment works, excluding Ellsworth Air Force Base--$600 per year;
(6) Steam electric power generating as defined by 40 CFR 423 as amended to January 1, 2011:
(a) 0.50 mgd or greater--$17,500 per year;
(b) Less than 0.50 mgd--$6,250 per year; and
(c) Noncontact cooling water--$600 per year; and
(7) Electrical transformer reclamation--$5,000 per year.
The secretary pursuant to the procedures contained in chapter 1-26 may establish the fee for any industrial or governmental treatment works with significant water quality loadings or that discharges toxic pollutants and is not included in the categories above, not to exceed thirty thousand dollars per year.
Source: SL 1992, ch 254, § 57; SL 2011, ch 165, § 68.
34A-2-119.1. Annual stormwater fees on construction and industrial sites.
There is hereby imposed an annual stormwater fee on each construction and industrial site that is required to operate under a general water pollution control permit issued under chapter 34A-2. The annual fee imposed in § 34A-2-117 is as follows:
(1) The fee payable by the Department of Transportation is twenty-five thousand dollars per year. The fee accrues on August first of each year and is due on August thirty-first;
(2) The fee for a construction site that is required to operate under a general water pollution control permit for stormwater discharges associated with construction activities as defined under 40 CFR Part 126 as amended to January 1, 2018, and issued under chapter 34A-2, other than any site owned by the Department of Transportation, is based on the number of acres disturbed for the entire construction project and the fee table below:
Disturbed Area (Acres) |
Fee ($) |
Less than 5 |
100 |
5 to less than 40 |
250 |
40 to less than 80 |
500 |
80 or more |
750 |
The fee is payable by the owner of the site. For any construction site permitted before July 1, 2018, the first annual stormwater fee payment is due on January 31, 2019. Any future annual fee accrues on January first of each year and is due on January thirty-first until the permit coverage is terminated. For any construction site permitted after June 30, 2018, the first annual stormwater fee payment is due when the owner submits the notice of intent to be covered under the general permit for stormwater discharges associated with construction activity. For any permit that continues beyond one year, the annual stormwater fee accrues on the anniversary of the notice of intent submission and is due thirty days later; and
(3) The secretary may promulgate rules, pursuant to chapter 1-26, to establish an annual tiered fee for each industrial site that is required to operate under a general water pollution control permit for stormwater discharges associated with industrial activities as defined under 40 CFR Part 126 as amended to January 1, 2018, and issued under chapter 34A-2. The tiered fee structure shall equitably assess an annual fee to cover the reasonable costs of developing and administering the stormwater permitting requirements for industrial activities that include:
(a) Preparing regulations and general stormwater permits for applicable industrial activities;
(b) Reviewing and acting on applications for an industrial stormwater permit or permit revision;
(c) Implementing the industrial stormwater permits and inspecting permitted facilities, to include enforcing the terms and conditions of the permits if needed; and
(d) Providing training, technical support, and customer services to permitted entities to include developing on-line functions.
The annual fee is in addition to any other fee or tax levied by law. The fee imposed by this section shall be remitted to the state along with any form as may be prescribed by the state. The fees shall be deposited in the surface water discharge and pretreatment permit administrative subfund established in § 34A-2-121.
Source: SL 2018, ch 212, § 3.
34A-2-120. Fee schedule for other entities.
For the entities listed below, the fee imposed in § 34A-2-117 is as follows:
(1) Other industrial and governmental treatment works not including treatment systems that will be assessed a fee based upon the population categories in § 34A-2-118 or the industrial and governmental systems assessed a fee in § 34A-2-119--$600 per facility per year;
(2) Treatment works with permits that allow no discharge--$50 per facility per year;
(3) Pretreatment industrial-user permits issued to any significant industrial user which is discharging to a publicly-owned treatment works--$600 per facility per year; and
(4) Publicly-owned treatment facilities or a combination of publicly-owned treatment facilities operated by the same authority which request that the state administer their local pretreatment program--$35,000 per authority per year.
In addition to the annual fee for pretreatment industrial-user permits, the department may require payment from the permittee for the cost for all analytical testing. This charge may not exceed one thousand six hundred dollars per process line annually.
The fees imposed by §§ 34A-2-117 to 34A-2-119, inclusive, and this section are in addition to all other fees and taxes levied by law.
Source: SL 1992, ch 254, § 58.
34A-2-121. Establishment of surface water discharge and pretreatment administrative subfund--Source of funds--Administration--Expenditures--Unexpended funds.
There is hereby established in the environmental fee fund established in § 1-41-23, the surface water discharge and pretreatment permit administrative subfund. This subfund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and fees received pursuant to §§ 34A-2-117 to 34A-2-120, inclusive. The subfund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the surface water discharge and pretreatment industrial user permit programs. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1992, ch 254, § 59; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-122. Owner or operator of surface water discharge or pretreatment system to pay annual fees--Application fee--Dates due.
The obligation to pay the annual fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a surface water discharge or pretreatment system and accrues on July first, for all nonpublicly-owned facilities. The fee is due and payable by July thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
The obligation to pay the annual fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a surface water discharge or pretreatment system and accrues on January first for all publicly-owned facilities. The fee is due and payable by January thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
The obligation to pay the application fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a facility requesting either coverage under a general permit or water quality certification under section 401 of the Federal Water Pollution Control Act as amended to January 1, 2011. The application fee for such water quality certification does not apply to treatment works already required to submit a fee under other provisions of §§ 34A-2-117 to 34A-2-120, inclusive. The fee is due and payable and shall be remitted to the Department of Agriculture and Natural Resources along with the application forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
Source: SL 1992, ch 254, § 60; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2011, ch 165, § 69; SL 2019, ch 158, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-123. Promulgation of rules on disposal of sewage sludge.
The board shall promulgate rules pursuant to chapter 1-26 to establish requirements for proper disposal of sewage sludge.
Source: SL 1992, ch 254, § 90.
34A-2-124. General permit for category of water pollution control--Effective period--Modification, suspension, or revocation--Violation.
After public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the board may issue a general permit for a category of water pollution control. A general permit issued by the board may be subject to such terms and conditions for installation, establishment, modification, operation, or abandonment of a category of water pollution control as the board finds reasonably necessary to adequately protect the public health, safety, welfare, and the environment of this state. Water pollution control activities conducted in conformity with a general permit do not require a permit issued by the secretary under § 34A-2-27.
A general permit shall remain in effect for a period of five years from the date of issuance or until suspended, revoked, or modified by the board. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the board, and upon action by the board in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit. Any violation of a condition of a general permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1993, ch 257, § 13; SL 1999, ch 180, § 2.
34A-2-125. Fee on certain concentrated animal feeding operations--Subfund created.
In addition to any other tax or fee levied by law, and notwithstanding the provisions of § 34A-2-117, there is hereby imposed an annual fee on all concentrated animal feeding operations that are required to operate under a general or individual water pollution control permit issued under chapter 34A-2 or required to obtain approval of plans and specifications submitted after July 1, 1997, pursuant to § 34A-2-27. The fee is two hundred fifty dollars for operations with two thousand or more animal units, one hundred seventy-five dollars for operations with one thousand to one thousand nine hundred ninety-nine animal units, and one hundred dollars for operations with less than one thousand animal units. The obligation to pay the fee is on the person filing the application for the water pollution control permit or the person required to obtain plans and specifications approval and accrues on July first of each year. By August first of each year, the Department of Agriculture and Natural Resources shall submit a billing to each person obligated to pay the fee. The fee is due and payable by September thirtieth and shall be remitted to the Department of Agriculture and Natural Resources.
There is hereby established in the environment and natural resources fee fund established in § 1-41-23 the concentrated animal feeding operation administrative subfund. The subfund consists of moneys from public and private sources including legislative appropriations, federal grants, gifts, and fees received pursuant to this section. The subfund shall be maintained separately and be administered by the Department of Agriculture and Natural Resources in order to defray the expenses associated with administering the concentrated animal feeding operation program. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1997, ch 209, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2019, ch 158, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
34A-2-126. Administrative rules on underground injection control Class III wells and in situ leach mining tolled.
The legal force and effect of the underground injection control Class III rules promulgated under subdivision 34A-2-93(15) are tolled until the department obtains primary enforcement authority for underground injection control Class III wells from the United States Environmental Protection Agency. The in situ leach mining rules promulgated under subdivision 45-6B-81(10) as they relate to uranium are tolled until the department obtains agreement state status from the United States Nuclear Regulatory Commission.
Source: SL 2011, ch 167, § 1.
34A-2A-1
Definition of terms.
34A-2A-2
Use of irrigation system for chemigation--Compliance with standards and
requirements--Penalties for violation.
34A-2A-3
Promulgation of rules regarding standards and requirements.
34A-2A-4
Entry by chief engineer to determine compliance.
34A-2A-5
Repealed.
34A-2A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Antipollution devices," any mechanical equipment used to reduce hazard to the environment in cases of malfunction or shutdown of chemigation equipment during chemigation and may include, but is not limited to, interlock, waterline check valve, chemical line closure device, vacuum relief device, and automatic low pressure drain;
(2) "Chemical," any fertilizer or pesticide;
(3) "Chemigation," any process whereby chemicals are added to irrigation water applied to land or crop or both through an irrigation system;
(4) "Fertilizer," any formulation or product used as a plant nutrient which is intended to promote plant growth and contains one or more plant nutrients;
(5) "Irrigation system," any device or combination of devices having a hose, pipe, or other conduit which connects directly to any source of ground or surface water, through which water or a mixture of water and chemicals is drawn and applied to land or crop or both. The term does not include any handheld hose sprayer or other similar device which is constructed so that an interruption in water flow automatically prevents any backflow to the water source;
(6) "Pesticide," any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pests, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant;
(7) "Chief engineer," the officer employed by the Department of Agriculture and Natural Resources pursuant to § 46-2-3.
Source: SL 1988, ch 286, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2A-2. Use of irrigation system for chemigation--Compliance with standards and requirements--Penalties for violation.
Any person who uses an irrigation system for chemigation who fails to comply with the standards and requirements established pursuant to § 34A-2A-3 is guilty of a Class 2 misdemeanor. In addition, a civil fine of not more than five hundred dollars may be imposed for the violation. Each day of noncompliance is a separate violation. In addition, the Water Management Board may suspend or cancel any water permit or license pursuant to § 46-1-12.
Source: SL 1988, ch 286, § 2; SL 1992, ch 158, § 35.
34A-2A-3. Promulgation of rules regarding standards and requirements.
The Water Management Board, with the assistance of the chief engineer, shall establish, by rules promulgated pursuant to chapter 1-26:
(1) Chemigation equipment standards, performance standards, and installation requirements; and
(2) Requirements regarding the use and location of antipollution devices.
The requirements and standards established pursuant to this section may provide for additional protection if chemigation involves the application of a pesticide, rather than a fertilizer.
Source: SL 1988, ch 286, § 3.
34A-2A-4. Entry by chief engineer to determine compliance.
The chief engineer may enter upon the land of a person as provided in § 46-2-19 for the purpose of determining whether such person is in compliance with the provisions of this chapter and any rules promulgated pursuant to this chapter.
Source: SL 1988, ch 286, § 4.
34A-2B-1
Definitions.
34A-2B-2
Environmental livestock cleanup fund--Sources of funding.
34A-2B-3
Expenditure of funds by secretary.
34A-2B-4
Disbursement of funds.
34A-2B-5
Reimbursement for corrective actions.
34A-2B-6
Compliance with conditions of permits--Discharge.
34A-2B-7
Violation--Corrective action.
34A-2B-8
Judicial remedies.
34A-2B-9
Violator's liability for expenses.
34A-2B-10
Lien on property--Notice--Priority of lien--Exceptions.
34A-2B-11
Other remedies.
34A-2B-1. Definitions.
Terms used in this section mean:
(1) "Corrective action," any action taken to minimize, contain, eliminate, remediate, mitigate, and clean up a discharge from a livestock operation, including any necessary emergency remedial action;
(2) "Corrective action cost," any cost incurred by the department in the investigation of a discharge from a livestock operation; in the corrective action that is required if the secretary determines that a discharge has occurred, or a potential for a discharge exists but an owner, operator, or liability fund capable of performing the corrective actions either cannot be identified, refuses, or is unable to undertake the corrective actions; or the performance of reasonable measures undertaken to prevent or mitigate damage to the public health, safety, welfare, or environment of the state;
(3) "Department," the Department of Agriculture and Natural Resources;
(4) "Discharge," an intentional or unintentional act or omission which results in the release, spill, leak, escape, or disposal of manure or other materials or wastes associated with livestock operations that have not been contained or managed properly and are a source of harm or a threat of harm to public health, safety, or the environment, and must be corrected. The term excludes any allowable discharge from a livestock operation made in compliance with the conditions of a state environmental permit;
(5) "Emergency remedial effort," any action taken to protect the public health, safety, or the environment from imminent danger resulting from a discharge or threatened discharge, and any action taken to contain a discharge which, if not contained, will in time pose a greater threat to the public health, safety, or the environment than if such action is not immediately taken;
(6) "Environment," land, including public and private property, surface and underground waters, fish, wildlife, biota, air, and other such resources within the state;
(7) "Person," public or private corporations, companies, associations, societies, firms, limited liability companies, partnerships, cooperatives, joint stock companies, individuals, the United States, this state and any of its political subdivisions and agencies, and any other state;
(8) "Responsible person," a person who has caused a discharge of manure or other material or waste associated with livestock operations, or a person who is an owner or operator of a livestock operation at any time during or after the discharge, or a person otherwise jointly or severally liable under law for the discharge; and
(9) "Secretary," the secretary of the Department of Agriculture and Natural Resources.
Source: SL 1998, ch 216, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2B-2. Environmental livestock cleanup fund--Sources of funding.
There is hereby established in the state treasury an operating fund to be known as the environmental livestock cleanup fund for the purpose of providing funds for the cleanup of discharges as defined in § 34A-2B-1. Money from the following sources shall be deposited into the environmental livestock cleanup fund:
(1) Money, other than criminal fines assessed in criminal actions, recovered by the state from any livestock operation in any action or administrative proceeding based upon violation of the state's environmental statutes in Title 34A or upon damage to the environment, including actions for administrative expense recoveries, civil penalties, compensatory damages, and money paid pursuant to any agreement, stipulation, or settlement in such actions or proceedings;
(2) Interest attributable to investment of the money in the fund; and
(3) Money received by the department in the form of gifts, grants, reimbursements, or appropriations from any source intended to be used for the purposes of the environmental livestock cleanup fund.
All money in the environmental livestock cleanup fund is continuously appropriated for the purposes specified in § 34A-2B-3. All money received by the department for the environmental livestock cleanup fund shall be set forth in an informational budget pursuant to § 4-7-7.2 and be annually reviewed by the Legislature.
Source: SL 1998, ch 216, § 3.
34A-2B-3. Expenditure of funds by secretary.
If necessary in the performance of duties under the environmental statutes in Title 34A, the secretary may expend money from the environmental livestock cleanup fund to provide for the costs of investigations, emergency remedial efforts, corrective actions, and managerial or administrative activities associated with such activities resulting from a discharge. The secretary's use of the environmental livestock cleanup fund shall be based upon the following:
(1) In the case of an investigation, when the secretary determines that a discharge has probably occurred and that the general operating budget of the department for such purposes is not adequate to cover the costs of the necessary investigatory activities;
(2) In the case of an emergency remedial effort, when the secretary determines that a discharge has occurred and that corrective actions shall be immediately undertaken to protect an imminent threat to the public health or safety or to contain a discharge which, if not immediately contained, will in time pose a significantly greater threat to public health or safety or to the environment of this state than if such action is not immediately taken;
(3) In the case of a discharge not of an emergency nature when the secretary determines that a discharge has occurred, that a responsible party or liability fund capable of performing the corrective actions either cannot be identified or refuses to undertake corrective actions, and that corrective actions shall be undertaken to protect the public health, safety, welfare, or environment of the state; or
(4) In the case of corrective action required at a livestock operation when the secretary determines that the potential for a discharge exists, that an owner, operator, or liability fund capable of performing the corrective actions either cannot be identified, refuses or is unable to undertake corrective actions, and that corrective action must be undertaken to protect against an imminent threat to the public health, safety, welfare, or environment of the state.
Source: SL 1998, ch 216, § 6.
34A-2B-4. Disbursement of funds.
The department shall perform all administrative functions relative to the environmental livestock cleanup fund and corrective actions funded by it. Disbursements from the environmental livestock cleanup fund shall be on warrants drawn by the state auditor pursuant to vouchers approved by the secretary.
Source: SL 1998, ch 216, § 7.
34A-2B-5. Reimbursement for corrective actions.
The department may bring an action in circuit court against the responsible person to obtain reimbursement for corrective action costs expended from the environmental livestock cleanup fund. The secretary may seek recovery of other funds expended by the department as a result of a discharge through actions brought under the provisions of Title 34A.
Source: SL 1998, ch 216, § 8.
34A-2B-6. Compliance with conditions of permits--Discharge.
The discharge of manure and other materials or wastes associated with livestock operations is prohibited unless pursuant to and in compliance with the conditions of permits issued in accordance with environmental statutes in Title 34A.
Source: SL 1998, ch 216, § 9.
34A-2B-7. Violation--Corrective action.
If a discharge in violation of § 34A-2B-6 has occurred, or the department has reason to believe that a discharge in violation of § 34A-2B-6 has occurred, the department shall order the responsible person to take corrective action concerning the discharge within a specified time. If the responsible person fails to comply with the department's order, the department may file an injunctive action in the circuit court of the county wherein the discharge has occurred seeking such corrective action. If the discharge occurs at any operation permitted under Title 34A and constitutes a violation of such permit, the department may order the operation to cease and desist further activity for the duration of the corrective action. This section is supplementary to other remedies available to the department under Title 34A.
Source: SL 1998, ch 216, § 10.
34A-2B-8. Judicial remedies.
The department may file an action in circuit court for preliminary and permanent injunctive relief if the secretary determines emergency remedial efforts are necessary to prevent, contain, control, or mitigate a discharge.
Source: SL 1998, ch 216, § 11.
34A-2B-9. Violator's liability for expenses.
Any person who has caused a discharge in violation of § 34A-2B-6 is strictly liable for the corrective action costs expended by the department.
Source: SL 1998, ch 216, § 12.
34A-2B-10. Lien on property--Notice--Priority of lien--Exceptions.
All corrective action costs expended pursuant to this section constitute a lien on the property where the discharge occurs when a notice of lien is filed with the register of deeds in the county in which the property is located. The notice of lien shall contain a description of the property of the responsible person upon which the lien is made, a description of the property from which the discharge requiring corrective action or emergency remedial efforts occurred, and a statement of the corrective action costs expended from the environmental livestock cleanup fund. Upon entry, the lien shall attach to all real property of the responsible person. The lien has priority over all other claims or liens on the property, except those which had been perfected before the department's filing of the notice of lien. No lien may be filed if a responsible person cannot be identified or if negligence was not a factor in the discharge.
Source: SL 1998, ch 216, § 13.
34A-2B-11. Other remedies.
Nothing in this section precludes the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department or any other person. Administrative remedies need not be exhausted in order to proceed under this section. The remedies provided by this section are in addition to those provided by existing statutory or common law.
Source: SL 1998, ch 216, § 14.
CHAPTER 34A-3
WATER SUPPLY AND TREATMENT SYSTEM OPERATORS
34A-3-1 Definition of terms.
34A-3-2 Classification of plants and systems according to skill required.
34A-3-3 Certification of qualifications to supervise plants and systems.
34A-3-4 Plants and systems for which certified operators required.
34A-3-4.1 Operator certification to comply with federal Safe Drinking Water Act.
34A-3-5 Board of Certification created--Functions--Composition of board.
34A-3-6 34A-3-6. Repealed by SL 2013, ch 166, § 27.
34A-3-7 Terms of office of appointive members of board.
34A-3-8 Vacancy in appointive membership--Termination of membership.
34A-3-9 Chairman and officers of board--Secretary.
34A-3-10 34A-3-10. Repealed by SL 2013, ch 166, § 28.
34A-3-11 Duties of secretary.
34A-3-12 Functions performed by Department of Agriculture and Natural Resources and Board of Water Management.
34A-3-13 Certified operators required for plants and systems--Time allowed to qualify--Misdemeanor.
34A-3-14 Application for certification--Proof of fitness.
34A-3-15 Examination and certification of applicants.
34A-3-16 34A-3-16, 34A-3-17. Repealed by SL 2013, ch 166, §§ 29, 30.
34A-3-18 Certifications--Expiration--Renewal.
34A-3-19 Certifications--Fees--Deposit and use of funds.
34A-3-20 Agreements for reciprocal certification.
34A-3-21 Suspension or revocation of certificate for violations.
34A-3-22 Procedure for suspension or revocation.
34A-3-23 New certificate after suspension or revocation--Judicial review.
34A-3-24 Rules promulgated by secretary--Contents.
34A-3-25 34A-3-25. Repealed by SL 2011, ch 165, § 77.
34A-3-26 Civil fine for supervision of water treatment plant by uncertified operator.
34A-3-1. Definition of terms.
Terms used in this chapter, unless the context otherwise requires, mean:
(1) "Board," the Board of Certification.
(2) "Certificate," a certificate of competency issued by the Department of Agriculture and Natural Resources stating that the operator has met the requirements for the specified operator classification of the certification program.
(3) "Department," Department of Agriculture and Natural Resources.
(4) "Operator," a person who is responsible for the operation of the environment treatment plant or wastewater treatment plant or the person who is responsible for operation of the water distribution system or wastewater collection system.
(5) "Secretary," secretary of the Department of Agriculture and Natural Resources.
(6) "Wastewater collection system," that portion of a wastewater system that is to convey wastewater to a treatment plant.
(7) "Wastewater treatment plant," the facility or group of units provided for the treatment of wastewater, either or both sewage and industrial wastes, and for the reduction and handling of sludge removed from such wastes.
(8) "Water distribution system," that portion of the water supply system in which water is conveyed from the water treatment plant or other supply point to the premises of the consumer.
(9) "Water supply system," the system of pipes, structures and facilities through which water is obtained, treated and sold, distributed or otherwise offered to the public for household use or any use by humans.
(10) "Water treatment plant," that portion of the water supply system which in some ways alters either the physical, chemical or bacteriological quality of the water.
Source: SL 1970, ch 217, § 1; SDCL Supp, § 36-22A-1; SL 1977, ch 280, §§ 34, 35; SL 1986, ch 295, § 15; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-3-2. Classification of plants and systems according to skill required.
The secretary shall classify all water treatment plants, wastewater treatment plants, water distribution and wastewater collection systems, and according to the skill, knowledge, and experience that the operator must have to supervise successfully the operation of such water treatment plants, wastewater treatment plants, water distribution and wastewater collection systems so as to protect the public health.
Source: SL 1970, ch 217, § 2; SDCL Supp, § 36-22A-2.
34A-3-3. Certification of qualifications to supervise plants and systems.
The secretary shall certify persons as to their qualifications to supervise successfully the operation of such water treatment plants, wastewater treatment plants, water distribution and wastewater collection systems after considering the recommendations of the Board of Certification.
Source: SL 1970, ch 217, § 3; SDCL Supp, § 36-22A-3.
34A-3-4. Plants and systems for which certified operators required.
All water treatment plants, wastewater treatment plants, water distribution and wastewater collection systems, serving a demand equal to five hundred or more persons and all water treatment plants using surface water or groundwater under the direct influence of surface water, in whole or in part, whether publicly or privately owned, shall be under the supervision of an operator whose competency is certified to by the secretary in a grade corresponding to the classification of that portion of the system to be supervised. Beginning January 1, 1993, all water treatment systems utilizing disinfection equipment shall be under the supervision of a certified operator.
Source: SL 1970, ch 217, § 4; SDCL Supp, § 36-22A-4; SL 1991, ch 291.
34A-3-4.1. Operator certification to comply with federal Safe Drinking Water Act.
All water treatment plants and water distribution systems required by section 1419 of the federal Safe Drinking Water Act, as amended to January 1, 2000, shall be under the supervision of an operator whose competency is certified by the secretary in a grade corresponding to the classification of the plant or system. Certificates of proper classification shall be issued without examination to the operators of plants and systems not requiring certified operators under § 34A-3-4 before July 1, 2000. The governing body or owner of the water system shall designate such persons in writing to the secretary by January 1, 2001. A certificate so issued is valid only for that operator and that plant or system. The certificate shall be marked, restricted. If the water treatment or distribution system is classified to a higher level, the operator shall meet the initial certification requirements for the system's new classification. An operator issued a restricted certificate pursuant to this section shall comply with all rules promulgated pursuant to § 34A-3-24, for certificate renewal and training of certified operators. A restricted certificate may be revoked pursuant to §§ 34A-3-21 to 34A-3-23, inclusive, as provided for in this chapter and the rules promulgated pursuant to § 34A-3-24. The secretary may promulgate rules pursuant to chapter 1-26 to provide for the issuance and renewal of certificates and other requirements for certified operators under this section and as otherwise may be necessary to implement the requirements of the federal Safe Drinking Water Act, as amended to January 1, 2000, in a state drinking water program approved by the United States Environmental Protection Agency.
Source: SL 2000, ch 176, § 1.
34A-3-5. Board of Certification created--Functions--Composition of board.
There is hereby created a Board of Certification to advise and assist the secretary of agriculture and natural resources in the administration of the program of certification. The board shall consist of six members appointed by the secretary of the Department of Agriculture and Natural Resources as follows:
(1) Four shall be employed as environment and wastewater works operators and shall hold valid certificates provided for in this chapter.
(2) One shall be an employee of a municipality which is required to employ a certified operator and shall hold the position of city manager, city engineer, director of public works, or an equivalent position.
(3) One shall be a faculty member of a college, university, or professional school operated within this state, and whose major field is related to sanitary engineering.
Source: SL 1970, ch 217, § 6; SDCL Supp, § 36-22A-5; SL 1974, ch 3, § 26; SL 1977, ch 280, § 36; SL 1986, ch 295, § 16; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-3-7. Terms of office of appointive members of board.
The appointed members' terms of office on the board shall be three years and until their successors are selected and qualified.
Source: SL 1970, ch 217, § 6; SDCL Supp, § 36-22A-6.
34A-3-8. Vacancy in appointive membership--Termination of membership.
If a vacancy occurs in the appointed membership of the board, the secretary may appoint a member for the remaining portion of the unexpired term created by the vacancy. The membership of any board member who leaves his or her field of employment or who moves from the State of South Dakota automatically terminates.
Source: SL 1970, ch 217, § 6; SDCL Supp, § 36-22A-7; SL 2011, ch 165, § 70.
34A-3-9. Chairman and officers of board--Secretary.
Each year the board shall select from its membership a chairman and such other officers as may be needed to conduct business. The secretary shall designate a member of the department staff as secretary of the board without power to vote.
Source: SL 1970, ch 217, § 7; SDCL Supp, § 36-22-8; SL 1977, ch 280, § 38.
34A-3-11. Duties of secretary.
The secretary shall:
(1) Hold at least one examination each year at the designated time and place for the purpose of examining candidates for certification;
(2) Advertise and promote the program of certification of water and wastewater works operators;
(3) Encourage other operators to become certified other than those required to do so by law;
(4) Distribute applications and notices;
(5) Receive and evaluate applications;
(6) Collect fees, not exceeding sixty dollars to cover reasonable costs of operator certification exams;
(7) Prepare, conduct, and grade examinations;
(8) Maintain records of operator qualifications and certification, and maintain a register of certified operators;
(9) Promote and schedule regular training schools and programs.
Source: SL 1970, ch 217, § 8; SDCL Supp, § 36-22A-11; SL 1977, ch 280, § 40; SL 2011, ch 165, § 71; SL 2021, ch 162, § 1.
34A-3-12. Functions performed by Department of Agriculture and Natural Resources and Board of Water Management.
The Department of Agriculture and Natural Resources shall perform all the functions of the former Department of Environment and Natural Resources, and the Public Health Advisory Committee, the former state health officer, and the Department of Health with respect to water hygiene programs authorized under, but not limited to, this chapter, except that the Board of Water Management shall perform any advisory functions as defined in § 1-32-1.
Source: SL 1973, ch 2, § 103; SDCL Supp, § 36-22A-11.1; SL 1974, ch 3, § 25; SL 1986, ch 295, § 18; SL 2021, ch 1 (Ex. Ord. 21-3), § 62, eff. Apr. 19, 2021.
34A-3-13. Certified operators required for plants and systems--Time allowed to qualify--Misdemeanor.
It is a Class 2 misdemeanor for any person, firm, or corporation, municipal or private, operating a water supply system or wastewater system to operate the water treatment plant, wastewater treatment plant, water distribution and wastewater collection systems unless the competency of the operator who is in direct responsible charge is certified by the secretary. Each operator who is in direct responsible charge shall, within one year from the date of his or her employment, become certified under the provisions of this chapter. It is a Class 2 misdemeanor for any person to perform the duties of an operator without being certified.
Source: SL 1970, ch 217, § 9; SDCL Supp, § 36-22A-12; SL 1977, ch 190, § 199; SL 2011, ch 165, § 72.
34A-3-14. Application for certification--Proof of fitness.
Application for certification shall be made in writing by the applicant at such time, in such form and accompanied by such proof of the applicant's fitness as an operator as the secretary may prescribe.
Source: SL 1970, ch 217, § 10; SDCL Supp, § 36-22A-13.
34A-3-15. Examination and certification of applicants.
Each applicant shall be examined by the department. The examination shall consist of such questions and such phases of the practice as may be prescribed from time to time by the department.
If the applicant satisfactorily passes the examination required, and demonstrates possession of the necessary qualifications, the applicant shall be certified.
Source: SL 1970, ch 217, § 10; SDCL Supp, § 36-22A-14; SL 2011, ch 165, § 73.
34A-3-18. Certifications--Expiration--Renewal.
All certifications shall expire on the first day of February of each year, at which time all certifications shall have been renewed.
Source: SL 1970, ch 217, § 10; SDCL Supp, § 36-22A-17; SL 2021, ch 162, § 2.
34A-3-19. Certifications--Fees--Deposit and use of funds.
The secretary may charge each applicant a fee not to exceed sixty dollars which shall accompany the application. The fees shall be deposited in the state treasury to be credited to the Board of Certification fund, which shall be used to pay expenses, and to administer the provisions, of this chapter. Any surplus at the end of the fiscal year shall be retained by the board for future expenditures.
Source: SL 1970, ch 217, § 10; SDCL Supp, § 36-22A-18; SL 2011, ch 165, § 74; SL 2021, ch 162, § 3.
34A-3-20. Agreements for reciprocal certification.
Agreements for reciprocity with other states having an act requiring the certification of operators similar to this chapter, may be executed by the secretary under appropriate rules and regulations promulgated by the secretary in compliance with chapter 1-26.
Source: SL 1970, ch 217, § 12; SDCL Supp, § 36-22A-19; revised pursuant to SL 1972, ch 15, § 4.
34A-3-21. Suspension or revocation of certificate for violations.
The secretary may suspend or revoke a certificate issued under this chapter on violation of any of the provisions of this chapter or any rules promulgated pursuant to this chapter.
Source: SL 1970, ch 217, § 13; SDCL Supp, § 36-22A-20; SL 2011, ch 165, § 75.
34A-3-22. Procedure for suspension or revocation.
No certificate may be suspended or revoked except in compliance with chapter 1-26.
Source: SL 1970, ch 217, § 13; SDCL Supp, § 36-22A-21; revised pursuant to SL 1972, ch 15, § 4; SL 2011, ch 165, § 76.
34A-3-23. New certificate after suspension or revocation--Judicial review.
If a certificate is suspended or revoked as provided in §§ 34A-3-21 and 34A-3-22, a new application for certification may be considered by the secretary if, when and after the conditions upon which suspension or revocation was based has been corrected and evidence of this fact has been satisfactorily submitted to the secretary. A new certificate may then be granted after all provisions of this chapter and the rules and regulations adopted hereunder have been complied with. The determination of the secretary is subject to review as provided by chapter 1-26.
Source: SL 1970, ch 217, § 13; SDCL Supp, § 36-22A-22; revised pursuant to SL 1972, ch 15, § 4.
34A-3-24. Rules promulgated by secretary--Contents.
The secretary, with the advice of the Board of Certification and in accordance with chapter 1-26, shall promulgate rules to establish the basis for classification of water treatment plants, wastewater treatment plants, water distribution and wastewater collection systems, to establish qualifications of applicants and procedures for examination of candidates, membership of and duties of the Board of Certification and such other provisions as are necessary for the administration of this chapter.
Source: SL 1970, ch 217, § 5; SDCL Supp, § 36-22A-23; revised pursuant to SL 1972, ch 15, § 4; SL 1977, ch 280, § 41; SL 1993, ch 256, § 23.
34A-3-26. Civil fine for supervision of water treatment plant by uncertified operator.
Any system or operator who violates the provisions of § 34A-3-4 is subject to a civil penalty not to exceed one thousand dollars per day of violation.
Source: SL 1992, ch 254, § 91; SL 1993, ch 34, § 5.
34A-3A-1
Public policy.
34A-3A-2
Definitions.
34A-3A-3
Promulgation of rules establishing standards and compliance procedures--Violation.
34A-3A-4
Enforcement powers of secretary.
34A-3A-5
Variances of standards--Grounds for authorizing.
34A-3A-6
Exemption of public water supply systems--Requirements.
34A-3A-7
Action for variance or exemption--Notice--Hearing.
34A-3A-8 to 34A-3A-11.
Repealed.
34A-3A-12
Notice of variance, exemption, or violation of compliance schedule.
34A-3A-13
Notice by secretary on failure of supplier.
34A-3A-14
Application to public water systems.
34A-3A-15
Injunctive and declaratory relief.
34A-3A-16
Approval and certification of laboratory facilities and personnel.
34A-3A-17
Prevention of pollution of water supply systems--Development of
voluntary wellhead protection program--Specifications.
34A-3A-18
Water quality sample collected upon completion of well--Submission to
department--Time period--Minimum analyzation requirements.
34A-3A-19
State administration of the public water system supervision program--Fee.
34A-3A-20
Annual fee schedule for public water systems.
34A-3A-21
Repealed.
34A-3A-22
Establishment of the drinking water administrative subfund--Source of
subfund--Administration--Expenditures--Unexpended funds.
34A-3A-23
Owner or operator to pay fee imposed on public drinking water
system--Date due.
34A-3A-24
Certain animal feeding operations prohibited from locating over shallow
aquifer.
34A-3A-25
Promulgation of rules to carry out requirements of Federal Safe Drinking
Water Act--Violation.
34A-3A-26
Penalties for violation of chapter--Factors considered in determining
penalty--Disposition of funds collected.
34A-3A-27
Administrative order assessing penalty--Contents of order--Uncontested
order becomes judgment--Hearing on order.
34A-3A-28
Administrative penalty for violation of chapter.
34A-3A-1. Public policy.
It is hereby declared to be the public policy of the state to achieve and maintain safe drinking water for the public which will protect human health and safety and prevent the creation of public nuisances. To these ends it is the purpose of this chapter to ensure that public water systems in the state meet or exceed minimum standards for drinking water quality and to foster cooperation and coordination with other state and local agencies, other states, and the federal government pursuant to the Federal Safe Drinking Water Act, Public Law 93-523, as amended to January 1, 2011.
Source: SL 1983, ch 260, § 1; SL 1986, ch 27, § 36; SL 2011, ch 165, § 78.
34A-3A-2. Definitions.
Terms used in this chapter mean:
(1) "Area of influence," the area surrounding a pumping or recharging well within which the potentiometric surface or the water table has been changed;
(2) "Board," the Water Management Board;
(3) "Cone of depression," the shape of the area of influence in cross section;
(4) "Critical aquifer protection area," all or part of an area located within an area for which an application or designation as a sole source aquifer has been submitted and approved by the administrator of the United States Environmental Protection Agency;
(5) "Department," the Department of Agriculture and Natural Resources;
(6) "Maximum contaminant level," the maximum permissible level of a contaminant in water which is delivered to any user of a public water system;
(7) "Potentiometric surface," an imaginary surface representing the total head of groundwater in a confined aquifer and defined by the level to which water will rise in a well;
(8) "Public water system," a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if the system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least sixty days out of the year and as provided for in 40 CFR sections 141.2 and 142.2 as amended to January 1, 2011;
(9) "Recharge area," the area through which water may percolate to the aquifer and eventually reach the well;
(10) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(11) "Sole source aquifer," an aquifer which provides fifty percent or more of the drinking water for an area and which if contaminated, would create a significant hazard to public health;
(12) "Supplier of water," any person who owns or operates a public water system;
(13) "Water table," that surface of a body of unconfined groundwater at which the pressure is equal to that of the atmosphere;
(14) "Wellhead protection area," the surface and subsurface area surrounding a water well or wellfield, supplying a public water system, through which contaminants are reasonably likely to move toward and reach such water well or wellfield.
Source: SL 1983, ch 260, § 2; SL 1987, ch 259, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1999, ch 181, § 1; SL 2011, ch 165, § 79; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-3A-3. Promulgation of rules establishing standards and compliance procedures--Violation.
The Water Management Board shall promulgate rules, pursuant to chapter 1-26, establishing:
(1) Safe drinking water standards with maximum contaminant levels necessary to protect public health and safety. No maximum contaminant level may be more stringent than those established under the Federal Safe Drinking Water Act, as amended to January 1, 2011; and
(2) Procedures to ensure compliance with this chapter including quality control, testing, monitoring, record keeping, reporting, and public notice.
A violation of the rules adopted pursuant to this section is subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty not to exceed five hundred dollars for each day of violation.
Source: SL 1983, ch 260, § 3; SL 1987, ch 259, § 2; SL 1988, ch 285, § 37; SL 1992, ch 158, § 37; SL 2011, ch 165, § 80.
34A-3A-4. Enforcement powers of secretary.
The secretary may:
(1) Review and approve the location, design, plans, and specifications for the construction or modification of public water systems;
(2) Conduct compliance investigations, including but not limited to, entering and inspecting systems and records of any supplier of water, to take samples and to take or to require the supplier to take all other reasonable steps necessary to ensure compliance with this chapter and rules adopted pursuant thereto;
(3) Require plans to provide safe drinking water under emergency circumstances and issue emergency orders requiring a supplier to take immediate action to prevent or eliminate an immediate hazard to public health or safety; and
(4) Receive financial and technical assistance from the federal government and other public or private agencies.
Source: SL 1983, ch 260, § 4.
34A-3A-5. Variances of standards--Grounds for authorizing.
The secretary may authorize a variance from any maximum contaminant level established in § 34A-3A-3 if:
(1) The raw water sources which are available to a specific system cannot meet the maximum contaminant level specified despite application of the best technology, treatment techniques, or other means which the secretary finds are generally and reasonably available, taking cost into consideration;
(2) The concentration of the contaminant or contaminants, for which the maximum contaminant level is exceeded by granting such variance, will not result in unreasonable risk to health;
(3) Within one year of the date of variance authorization, a schedule for compliance is issued and the owner of the supply agrees to implement the compliance schedule.
Source: SL 1983, ch 260, § 5.
34A-3A-6. Exemption of public water supply systems--Requirements.
The secretary may exempt any public water supply system from any maximum contaminant level upon finding that:
(1) Due to compelling factors, including economic, the public water system is unable to comply with the contaminant level. In assessing the compelling factors the secretary shall consider such factors as construction, installation, or modification of treatment equipment or systems, and the time needed to replace an existing noncomplying facility with a new treatment system;
(2) The public water system was in operation on the effective date of the maximum contaminant level regulations;
(3) The granting of the exemption will not result in an unreasonable risk to health; and
(4) Within one year of the date of exemption authorization, a schedule for compliance be issued and the owner of the supply agree to implement the schedule.
Source: SL 1983, ch 260, § 6.
34A-3A-7. Action for variance or exemption--Notice--Hearing.
Action to consider a variance or exemption may be initiated by the secretary or by the owner of the supply through a formal request submitted to the secretary. Public notice and hearing on the application for a variance or exemption shall comply with the provisions of chapter 1-26.
Source: SL 1983, ch 260, § 7.
34A-3A-12. Notice of variance, exemption, or violation of compliance schedule.
If a variance or exemption is granted or if a compliance schedule contained in a variance or exemption is violated, public notification as required by § 34A-3A-3 shall be given by the supplier of water.
Source: SL 1983, ch 260, § 12; SL 1988, ch 285, § 42.
34A-3A-13. Notice by secretary on failure of supplier.
Notice to the public required by this chapter may be given by the secretary on behalf of the supplier of water if the supplier of water fails to comply with the public notification requirements of this chapter.
Source: SL 1983, ch 260, § 13.
34A-3A-14. Application to public water systems.
This chapter applies to each public water system unless the system consists only of distribution and storage facilities; obtains all of its water from, but is not owned or operated by a public water system to which this chapter applies; does not sell water to any person; and is not a carrier which conveys passengers in interstate commerce.
Source: SL 1983, ch 260, § 14.
34A-3A-15. Injunctive and declaratory relief.
The secretary may enforce the provisions of this chapter by means of injunctive and declaratory relief in circuit court.
Source: SL 1983, ch 260, § 15; SL 1992, ch 158, § 38.
34A-3A-16. Approval and certification of laboratory facilities and personnel.
The director of laboratories shall establish and carry out a program for approval and certification of laboratory facilities and personnel which conduct analytical measurements required by any rules promulgated pursuant to this chapter.
Source: SL 1983, ch 260, § 16.
34A-3A-17. Prevention of pollution of water supply systems--Development of voluntary wellhead protection program--Specifications.
The department shall develop procedures necessary to safeguard public health and welfare and prevent pollution of public water supply systems. The department shall develop a voluntary wellhead protection program which will specify the following:
(1) Guidelines for a wellhead protection program to protect the public water supplies from new and existing facilities which may be potential or actual pollution sources, including, but not limited to, the design of new facilities and modification of existing facilities, the department approval or denial under existing authority of plans and specifications for new facilities or modifications to existing facilities, the construction and the installation of release detection and containment systems, siting criteria for new facilities, operation and maintenance criteria, contingency plans for pollutant release containment and cleanup, technical assistance, and education and training;
(2) Guidelines specifying the duties of the department and local governments in developing and implementing the wellhead protection program;
(3) Guidelines for determining the extent of wellhead protection areas. Factors for consideration may include, but are not limited to, the cone of depression, the area of influence, the area of contribution and the recharge area;
(4) Guidelines for determining all potential and actual pollution sources which may have an adverse effect on public health;
(5) Guidelines for taking into consideration potential sources of pollution when siting new wells for public water supplies; and
(6) Guidelines for developing contingency plans for pollution release containment, cleanup and the provision of alternative drinking water supplies for each public water system in the event of well or wellfield pollution.
Source: SL 1989, ch 306, § 42.
34A-3A-18. Water quality sample collected upon completion of well--Submission to department--Time period--Minimum analyzation requirements.
Following completion of any new well for domestic use, a water quality sample shall be collected and submitted to the Department of Health Laboratory or another laboratory approved by the department. If the well flows or if the well driller installs the pump, the well driller shall collect and submit the water quality sample. If the pump is not installed by the well driller, the owner shall collect and submit the water sample. The completed analysis shall be submitted to the department by the well driller or owner within thirty days after the submittal of the well completion report which is filed with the department pursuant to § 46-6-11. At a minimum, the water sample shall be analyzed for nitrate, coliform bacteria, sodium, conductivity, and sulfate. Other contaminants may be analyzed for at the option of the well owner or driller. The owner or well driller shall pay for the cost of all analyses.
Source: SL 1989, ch 306, § 46.
34A-3A-19. State administration of the public water system supervision program--Fee.
In order to safeguard the public health, safety, and welfare of this state through a customer service approach, the state shall retain administration of the public water system supervision program as provided in the Federal Safe Drinking Water Act as amended to January 1, 2011. In order to meet the increasing delegation requirements the result of the 1986 amendments to the Federal Safe Drinking Water Act, a fee shall be imposed upon the users of drinking water facilities as provided in § 34A-3A-20 to defray the costs to the state of administering the program.
Source: SL 1992, ch 254, § 67; SL 2011, ch 165, § 81.
34A-3A-20. Annual fee schedule for public water systems.
There is hereby imposed an annual fee upon all public water systems under the provisions of section 1411 of the Federal Safe Drinking Water Act, 42 U.S.C. 300F et seq. as amended to January 1, 2011. The fee is assessed as follows:
(1) For community water systems including municipalities, rural water systems, housing subdivisions, trailer parks, sanitary districts, religious colonies, and government operated water systems, the fee shall be based upon 1990 census data for municipalities, population served for nonmunicipalities, and the following fee table:
Population Range |
Fee ($) |
25 to 50 |
15 |
51 to 100 |
30 |
101 to 200 |
60 |
201 to 300 |
100 |
301 to 400 |
140 |
401 to 500 |
180 |
501 to 600 |
220 |
601 to 700 |
260 |
701 to 800 |
300 |
801 to 900 |
340 |
901 to 1,000 |
380 |
1,001 to 2,000 |
600 |
2,001 to 3,000 |
1,000 |
3,001 to 4,000 |
1,400 |
4,001 to 5,000 |
1,800 |
5,001 to 6,000 |
2,200 |
6,001 to 7,000 |
2,600 |
7,001 to 8,000 |
3,000 |
8,001 to 9,000 |
3,400 |
9,001 to 10,000 |
3,800 |
10,001 to 11,000 |
4,200 |
11,001 to 12,000 |
4,600 |
12,001 to 13,000 |
5,000 |
13,001 to 14,000 |
5,400 |
14,001 to 15,000 |
5,800 |
15,001 to 16,000 |
6,200 |
16,001 to 17,000 |
6,600 |
17,001 to 18,000 |
7,000 |
18,001 to 19,000 |
7,400 |
19,001 to 20,000 |
7,800 |
20,001 to 30,000 |
10,000 |
30,001 to 40,000 |
14,000 |
40,001 to 50,000 |
18,000 |
50,001 to 60,000 |
22,000 |
60,001 to 70,000 |
26,000 |
70,001 to 80,000 |
30,000 |
80,001 to 90,000 |
34,000 |
90,001 to 100,000 |
38,000 |
100,001 or more |
41,000 |
(2) For noncommunity water systems including private campgrounds, government-operated campgrounds, interstate highway rest areas, tourist attractions, gas stations, motels, public and private schools, and other systems providing drinking water to the public--$10.00 minimum.
The fee imposed by this section is in addition to any other fee or tax.
Source: SL 1992, ch 254, § 68; SL 2011, ch 165, § 82.
34A-3A-22. Establishment of the drinking water administrative subfund--Source of subfund--Administration--Expenditures--Unexpended funds.
There is hereby established in the environmental fee fund created in § 1-41-23, the drinking water administrative subfund. This subfund shall consist of legislative appropriations, federal grants, gifts, civil penalties received for any drinking water standards violations, and fees received pursuant to § 34A-3A-20. The fund shall be maintained separately and be administered by the department in order to defray expenses of all activities associated with administering the drinking water program. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1992, ch 254, § 70; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
34A-3A-23. Owner or operator to pay fee imposed on public drinking water system--Date due.
The obligation to pay the fee imposed by § 34A-3A-20 shall be upon the owner and operator of a public drinking water system and shall accrue on July first. The fee is due and payable by July thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
Source: SL 1992, ch 254, § 71; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2019, ch 158, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-3A-24. Certain animal feeding operations prohibited from locating over shallow aquifer.
No concentrated animal feeding operation that includes a number of animals equal to or greater than one thousand animal units may be located over a shallow aquifer unless a groundwater discharge permit has been approved in accordance with chapter 34A-2. For purposes of this section, a shallow aquifer is any aquifer having the following characteristics:
(1) The aquifer is within fifty feet or less below the land surface with fifteen feet or less of continuous, overlying, extremely low permeability geologic material, such as clayey till or shale. Weathered till or highly fractured weathered shale is not an extremely low permeability material for purposes of this section; or
(2) The aquifer is greater than fifty feet but less than one hundred feet below the land surface with thirty feet or less of continuous overlying low to extremely low permeability geologic material that may be a combination of weathered and unweathered till, shale, or till and shale.
This section does not apply to any concentrated animal feeding operation that was operating on or before July 1, 1997. This section does not limit or prohibit the expansion of any concentrated animal feeding operation that was operating on or before July 1, 1997.
The provisions of this section do not apply to any county which has officially adopted a comprehensive plan and zoning ordinances pursuant to chapter 11-2 and wellhead protection ordinances pursuant to § 7-18-20.
Source: SL 1997, ch 210, §§ 1, 2.
34A-3A-25. Promulgation of rules to carry out requirements of Federal Safe Drinking Water Act--Violation.
In order to carry out the requirements of the Federal Safe Drinking Water Act as amended to January 1, 2011, the secretary of agriculture and natural resources shall promulgate rules, pursuant to chapter 1-26, establishing:
(1) Procedures for a supplier of water to demonstrate that a new system intended to be a public water system has the technical, managerial, and financial capacity to achieve and maintain compliance with all relevant local, state, and federal requirements;
(2) Procedures for the department to issue certificates of approval to new water suppliers once a technical, managerial, and financial capacity review, consistent with provisions of this chapter, is completed. The rules shall provide that a new system intended to be a public water system, after October 1, 1999, may not operate until it has been issued a certificate of approval;
(3) The development and implementation of a strategy to assist public water systems in acquiring and maintaining technical, managerial, and financial capacity to comply with all relevant local, state, and federal requirements; and
(4) Such other rules as may be necessary to implement the provisions of the Federal Safe Drinking Water Act as amended to January 1, 2011, in a state drinking water program approved by the United States Environmental Protection Agency.
A violation of any rule adopted pursuant to this section is subject to the penalties provided for in § 34A-3A-3.
Source: SL 1998, ch 217, § 1; SL 2011, ch 165, § 84; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-3A-26. Penalties for violation of chapter--Factors considered in determining penalty--Disposition of funds collected.
A violation of any provision of this chapter or any rule promulgated pursuant to this chapter is subject to an administrative penalty assessed by the secretary, after notice and opportunity for hearing, pursuant to chapter 1-26. In the case of a public water system serving a population of more than ten thousand, the maximum penalty amount may be no more than one thousand dollars per day per violation. In the case of a public water system serving a population of less than ten thousand, the penalty may not exceed five hundred dollars per day per violation. The maximum penalty, assessed by the secretary, may not exceed five thousand dollars per violation. In determining the amount of the penalty upon finding a violation, or the amount of a settlement, the secretary shall consider the gravity of the violation, prior violations and compliance history, damage caused by the violation, the willfulness of the violation, and good faith attempts to achieve compliance. All penalties collected pursuant to this section shall be deposited in the regulated substance response fund, established pursuant to § 34A-12-3.
Source: SL 1999, ch 181, § 2.
34A-3A-27. Administrative order assessing penalty--Contents of order--Uncontested order becomes judgment--Hearing on order.
A monetary penalty issued under § 34A-3A-26 shall be assessed against a violator by an administrative order of the secretary. The order shall state the date and facts of each violation addressed under the penalty assessed and the citations to the provisions of each law alleged to be violated. The order shall contain a statement that the violator may request a contested case hearing on the violation and penalty pursuant to chapter 1-26, by filing a written request with the secretary no later than twenty days after the receipt of the order. The order shall state that a request for contested case hearing must state the specific part or parts of the order being contested along with relevant facts and supporting legal authorities. The secretary shall serve the order and assessment by certified mail. If not contested within twenty days of receipt, an administrative order assessing a monetary penalty under this section shall constitute a judgment and may be executed by delivery of a true and correct copy certified by the secretary in the manner provided for the execution of money judgments in chapter 15-18.
If a hearing is requested, the matter shall be scheduled for a hearing before the secretary or a designee within thirty days from the receipt of the request. The department shall provide notice of the hearing consistent with the provisions of § 1-26-17. Hearings shall be conducted pursuant to chapter 1-26. A final determination by the secretary may be appealed to the circuit and Supreme Court as provided in chapter 1-26. After a final determination, when the time to take an appeal has lapsed, the administrative order assessing a monetary penalty under this section shall constitute a judgment and may be executed by delivery of a true and correct copy certified by the secretary in the manner provided for the execution of judgments in chapter 15-18.
Source: SL 1999, ch 181, § 3.
34A-3A-28. Administrative penalty for violation of chapter.
Any violation of this chapter and the rules promulgated thereunder is subject to the administrative penalty provisions of §§ 34A-3A-26 and 34A-3A-27 and enforcement under § 34A-3A-15.
Source: SL 1999, ch 181, § 4.
CHAPTER 34A-5
SANITARY DISTRICTS
34A-5-1 Areas subject to incorporation as districts.
34A-5-2 Minimum population of district.
34A-5-3 Map of proposed district.
34A-5-4 34A-5-4. Repealed by SL 1998, ch 36, § 39.
34A-5-5 Survey, map, and census made available for public examination.
34A-5-6 Application for incorporation of district--Number of signatures required--Filing.
34A-5-7 Commissioners' order to incorporate district upon assent of electors--Name of district.
34A-5-8 34A-5-8 to 34A-5-10. Repealed by SL 1998, ch 36, §§ 43 to 45.
34A-5-11 Ballot form on question of incorporation--Majority required for approval.
34A-5-12 Canvass and return of election results--Order of county commissioners declaring incorporation.
34A-5-13 Expenditure of county funds for preliminary and election expenses--State funds.
34A-5-14 District as governmental subdivision and public body.
34A-5-14.1 Districts to be governed by board of trustees--Number of members.
34A-5-15 34A-5-15. Repealed by SL 1998, ch 36, § 48.
34A-5-16 Number and terms of office of district trustees--Inspectors' certificate as to persons elected.
34A-5-17 Election on increase in number of trustees.
34A-5-18 Notice of election--Separate ballots.
34A-5-19 Election of additional trustees if increase approved--Terms of office--Certification.
34A-5-20 Annual election of district officers.
34A-5-21 Nomination petitions for district trustee.
34A-5-21.1 Vacancies on board of trustees.
34A-5-21.2 Residency of district trustees.
34A-5-21.3 Published notice of vacancies--Content--Timeliness.
34A-5-22 Organization of board of trustees--President--Meetings.
34A-5-23 Expense reimbursement and compensation of trustees.
34A-5-24 Policies and regulations for business of board--Time of meetings--Quorum.
34A-5-25 Office of sanitary district--Record of proceedings.
34A-5-26 General powers of trustees.
34A-5-26.1 34A-5-26.1. Executed.
34A-5-27 Employment of personnel for district--Professional assistance.
34A-5-28 Trustees and employees not to be interested in district transactions.
34A-5-28.1 Trustee permitted to contract with district under certain conditions.
34A-5-29 Ordinances, resolutions, orders and regulations for district.
34A-5-29.1 Adoption by reference of ordinances of contracting municipality.
34A-5-29.2 Notice requirement for passage of new ordinance or resolution.
34A-5-30 Operation of sewers and disposal plants--Tax levies, assessments and bonds--Eminent domain.
34A-5-31 Proceedings governed by municipal laws--Eminent domain proceedings.
34A-5-32 Abandonment of pending condemnation action--Reconveyance to original owner on court order--Return of deposit--Retrospective operation.
34A-5-33 Sale of surplus real property held by sanitary district--Conduct of sale--Employment of agents--Offer to prior owner.
34A-5-34 Contracts with municipalities for sewage treatment and disposal.
34A-5-35 Requiring connections with sewers--Assessments and charges--Construction and inspection standards for private systems.
34A-5-36 Rates and charges for sanitary services--Measures for protection of bondholders.
34A-5-37 Rates and charges to be sufficient for operation of facilities and retirement of revenue bonds.
34A-5-38 Rates and charges for retirement of bonds in lieu of special assessment certificates--Financing of improvements.
34A-5-39 Sanitary districts not subject to certain municipal sewer system requirements.
34A-5-40 Certification of unpaid charges and tax levies--Collection with real estate taxes--Tax sales.
34A-5-41 Election on acquisition and operation of water system--Board powers on approval.
34A-5-42 Petition for annexation or exclusion of territory--Resolution of intention--Notice of hearing.
34A-5-43 Hearing and resolution to annex or exclude territory--County commissioners' approval required.
34A-5-44 Appeal to circuit court from denial of annexation or exclusion of territory--Notice, hearing and order of court.
34A-5-45 Recording of map and resolution after annexation or exclusion of territory.
34A-5-46 Formation of consolidated district authorized--Resolutions of governing bodies proposing formation.
34A-5-47 Election on formation of consolidated district--Form of ballot.
34A-5-48 Resolutions after approval of consolidated district by voters--Filing of proceedings.
34A-5-49 Property not acquired nor debts assumed by incorporation of consolidated district.
34A-5-50 Board of trustees for consolidated district.
34A-5-51 Contracts of consolidated district for purchase or use of sanitary facilities.
34A-5-52 Validation of prior proceedings of sanitary districts--Deadline for enforcing rights.
34A-5-53 Dissolution of district on voters' petition.
34A-5-54 Dissolution of district by directors' resolution on annexation to municipality--Notice and hearing--Appeal.
34A-5-54.1 Assumption of bonded indebtedness of district by municipality--Election.
34A-5-55 34A-5-55. Repealed by SL 2011, ch 165, § 108.
34A-5-56 Certified copy of budget to county auditors and secretary of revenue.
34A-5-1. Areas subject to incorporation as districts.
If any populated area outside the boundary of any municipality is situated so that the sewage of the populated area becomes, or may become, a menace to the residents of the populated area or to the residents of any municipality adjacent to the populated area, the populated area may be incorporated as a sanitary district as provided in this chapter.
Source: SL 1947, ch 226, § 1; SDC Supp 1960, § 45.3801; SDCL § 34-17-1; SL 1992, ch 60, § 2; SL 2011, ch 165, § 85.
34A-5-2. Minimum population of district.
No sanitary district may be incorporated which contains less than thirty legal residents, including minors, or less than ten landowners within the proposed district who are also registered voters in the proposed district.
Source: SL 1947, ch 226, § 3; SDC Supp 1960, § 45.3803; SL 1964, ch 144, § 1; SDCL, § 34-17-2; SL 1973, ch 224; SL 1998, ch 36, § 38.
34A-5-3. Map of proposed district.
Any person making application for the organization of a sanitary district shall first cause an accurate map to be made of the territory intended to be included in the sanitary district, showing the boundaries and area of the district. The accuracy of the map shall be verified by the affidavit of a surveyor. The map may be completed by reviewing records and legal descriptions at a county register of deeds office.
Source: SL 1947, ch 226, § 2; SDC Supp 1960, § 45.3802; SDCL § 34-17-3; SL 2001, ch 190, § 1; SL 2011, ch 165, § 86.
34A-5-5. Survey, map, and census made available for public examination.
The survey and map when completed shall be left at some convenient public place, to be designated by the county auditor of the county in which the application for incorporation is to be filed, within the territory for a period of not less than twenty days for examination by any person having an interest in the application.
Source: SL 1947, ch 226, § 4; SDC Supp 1960, § 45.3804; SL 1964, ch 144, § 2; SDCL, § 34-17-5; SL 1998, ch 36, § 40.
34A-5-6. Application for incorporation of district--Number of signatures required--Filing.
The application for organization shall be as provided in § 6-16-2 and shall be filed with the county auditor and presented to the board of county commissioners for consideration at the board's next meeting.
Source: SL 1947, ch 226, § 5; SDC Supp 1960, § 45.3805; SL 1964, ch 144, § 3; SDCL, § 34-17-6; SL 1998, ch 36, § 41.
34A-5-7. Commissioners' order to incorporate district upon assent of electors--Name of district.
If the board of county commissioners is satisfied that the requirements of this chapter have been fully complied with, the board shall issue an order declaring that the territory shall, with the assent of the electors as specified in § 6-16-2, in an election as provided in §§ 6-16-4 to 6-16-6, inclusive, be an incorporated sanitary district by the name specified in the application. The name shall be different from that of any other sanitary district in this state.
Source: SL 1947, ch 226, § 6; SDC Supp 1960, § 45.3806; SL 1964, ch 144, § 4; SDCL § 34-17-7; SL 1998, ch 36, § 42; SL 2011, ch 165, § 87.
34A-5-11. Ballot form on question of incorporation--Majority required for approval.
If a majority vote in favor of the incorporation, the territory shall be deemed a sanitary district by the name and style specified in the order of incorporation by the board of county commissioners; otherwise, no further proceedings may be taken.
Source: SL 1947, ch 226, § 10; SDC Supp 1960, § 45.3810; SDCL, § 34-17-11; SL 1998, ch 36, § 46.
34A-5-12. Canvass and return of election results--Order of county commissioners declaring incorporation.
If satisfied with the legality of the election, the board of county commissioners shall issue an order declaring that the sanitary district has been incorporated by the name adopted. The order shall be conclusive of the fact of incorporation in all suits by or against the sanitary district.
Source: SL 1947, ch 226, § 11; SDC Supp 1960, § 45.3811; SDCL, § 34-17-12; SL 1998, ch 36, § 47.
34A-5-13. Expenditure of county funds for preliminary and election expenses--State funds.
The county board may expend funds of the county, in the manner and to the extent permitted by law for other county expenditures, in the payment of necessary costs of preparation of petitions, surveys, maps, and applications submitted under the provisions of this chapter, and of the holding of elections on the incorporation of sanitary districts hereunder. The county board may accept and expend any funds appropriated to the State Department of Agriculture and Natural Resources and allocated by that department to the county for these purposes.
Source: SDC Supp 1960, § 45.3806 as added by SL 1964, ch 144, § 4; SDCL, § 34-17-13; SL 1986, ch 295, § 20; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-5-14. District as governmental subdivision and public body.
Any sanitary district established under this chapter is a governmental subdivision of this state and a public body, corporate and politic.
Source: SL 1947, ch 226, § 17; SDC Supp 1960, § 45.3817; SDCL § 34-17-14; SL 2011, ch 165, § 88.
34A-5-14.1. Districts to be governed by board of trustees--Number of members.
Each sanitary district shall be governed by a board of trustees elected at large, as provided in this chapter. Each board of trustees shall consist of an odd number of members and shall have at least three but not more than eleven members, as provided in this section.
If a sanitary district provides or is proposed to provide sewer or water facility connections to more than one thousand five hundred households, farms, businesses, or other entities, the board of trustees shall consist of at least five but not more than eleven members. If a sanitary district provides or is proposed to provide at least one thousand but not more than one thousand five hundred sewer or water facility connections, the board of trustees shall consist of at least five but not more than nine members. If a sanitary district provides or is proposed to provide at least five hundred but not more than one thousand sewer or water facility connections, the board of trustees shall consist of at least three but not more than seven members. If a sanitary district provides or is proposed to provide fewer than five hundred sewer or water facility connections, the board of trustees shall consist of at least three but not more than five members.
The number of trustees for a newly incorporated or consolidated sanitary district shall be specified in the order of incorporation issued under § 34A-5-7 or in the consolidation resolution issued under § 34A-5-46.
Source: SL 1993, ch 258, § 5; SL 2019, ch 160, § 1.
34A-5-16. Number and terms of office of district trustees--Inspectors' certificate as to persons elected.
There shall be elected at the first election of a sanitary district three trustees at large, who shall respectively hold their offices, one for a term of one year, one for a term of two years, and one for a term of three years. The person having the highest number of votes shall serve for a term of three years, the person receiving the second highest number of votes shall serve for a term of two years, and the person receiving the third highest number of votes shall serve for a term of one year, and such persons shall be declared elected to such offices; thereafter, there shall be elected annually one trustee for a term of three years. The inspectors shall subscribe and certify a statement of the persons elected to fill the offices of trustees in such sanitary district and file the same with the county auditor within ten days after the date of such election.
Source: SL 1947, ch 226, § 12; SDC Supp 1960, § 45.3812; SL 1964, ch 144, § 5; SDCL, § 34-17-16; SL 1969, ch 185, § 1; revised pursuant to SL 1972, ch 15, § 3.
34A-5-17. Election on increase in number of trustees.
The board of trustees may by resolution submit to the voters the question of whether the number of trustees shall be increased to five at a special election called for that purpose, or at the next regular election.
Source: SL 1975, ch 220, § 1; SDCL Supp, § 34-17-16.1.
34A-5-18. Notice of election--Separate ballots.
The board of trustees shall give notice pursuant to § 6-16-4 of the election provided for in § 34A-5-17. The question shall be submitted to the voters on a separate ballot and shall enable each voter to vote for or against the proposed question.
Source: SL 1975, ch 220, § 2; SDCL Supp, § 34-17-16.2; SL 2000, ch 32, § 6.
34A-5-19. Election of additional trustees if increase approved--Terms of office--Certification.
If a majority of the voters approve the question to increase the board of trustees to five, the voters shall elect one additional trustee for a three-year term and one additional trustee for a two-year term at the next regular election and the trustees shall be certified in the same manner as provided by law.
Source: SL 1975, ch 220, § 3; SDCL Supp, § 34-17-16.3; SL 1998, ch 36, § 49.
34A-5-20. Annual election of district officers.
Each sanitary district shall annually elect officers on any Tuesday in the month following the anniversary date of the first election. The board of trustees shall designate a location in the district where the election shall be held. If one or more of the corporate bodies making up a sanitary district is a municipality, and the anniversary date falls within three months prior to or within one month after the annual election of the municipality, the annual election of officers shall be held on the same day as the annual municipal election. The annual election, whether or not it is held in conjunction with the annual municipal election, shall be conducted in accordance with the municipal election laws pursuant to chapter 9-13, except as provided in this chapter.
Source: SL 1947, ch 226, § 14; SDC Supp 1960, §§ 45.3812, 45.3814; SL 1964, ch 144, § 5; SL 1967, ch 228, SDCL, § 34-17-17; SL 1969, ch 185, § 2; SL 1974, ch 236, § 1; SL 1988, ch 287; SL 1990, ch 284, § 1; SL 1994, ch 281, § 1.
34A-5-21. Nomination petitions for district trustee.
Any trustee to be elected at the initial election shall be nominated by any person in attendance at the meeting at which the organizational election is held. Any trustee to be elected at a subsequent election shall be nominated by filing with the district clerk, not more than forty nor less than twenty days before any subsequent election, a nomination petition for office of trustee. The petition shall be in writing and shall contain the candidate's name, residence, business address, and the office for which the candidate is named. The petition shall be signed by at least twenty-five qualified voters or five percent of the qualified voters, whichever is less.
Source: SL 1947, ch 226, § 13; SDC Supp 1960, § 45.3813; SL 1964, ch 144, § 6; SDCL § 34-17-18; SL 1970, ch 198; SL 1983, ch 261; SL 1988, ch 288, § 1; SL 1994, ch 281, § 2; SL 1998, ch 36, § 50; SL 2015, ch 191, § 1.
34A-5-21.1. Vacancies on board of trustees.
If a vacancy occurs on a sanitary district board of trustees, the remaining members shall appoint a replacement to serve the remainder of such term.
Source: SL 1984, ch 245; SL 1990, ch 284, § 3.
34A-5-21.2. Residency of district trustees.
To serve as a trustee of a sanitary district that has one hundred or more residents, the person shall be a resident of the sanitary district.
To serve as a trustee of a sanitary district with less than one hundred residents, a person shall be a resident of the sanitary district or a United States citizen who owns real property within the boundaries of the sanitary district.
Source: SL 1988, ch 288, § 2; SL 2011, ch 165, § 89; SL 2019, ch 160, § 2.
34A-5-21.3. Published notice of vacancies--Content--Timeliness.
The board of trustees shall publish a notice in the official newspaper of the sanitary district setting forth the vacancies which will occur by termination of the terms of office of elective officers. The notice shall also state the time and place where nominating petitions may be filed for such offices. The notice shall be published once each week for two consecutive weeks. The first notice shall be published not less than thirty days prior to the deadline for filing nominating petitions.
Source: SL 1990, ch 284, § 2.
34A-5-22. Organization of board of trustees--President--Meetings.
The members of the board of trustees shall organize by electing one of the members to serve as president. The president shall preside over all meetings of the board and shall call all special meetings of the board if the president or a majority of the board deems such a meeting necessary. If the president fails or refuses to call a special meeting, a special meeting may be called by a majority of the board.
Source: SL 1947, ch 226, § 16; SDC Supp 1960, § 45.3816; SDCL § 34-17-19; SL 1976, ch 215, § 1; SL 2011, ch 165, § 90.
34A-5-23. Expense reimbursement and compensation of trustees.
Each sanitary district board of trustees shall establish amounts to reimburse board members for expenses for lodging, meals, and mileage and to provide compensation for each day of actual service for traveling to, attending, and returning from meetings, hearings, or investigations of the sanitary district board. Such reimbursement and compensation shall be paid at the rates set pursuant to chapter 3-9.
Source: SL 1976, ch 215, §§ 1, 2; SDCL Supp, § 34-17-19.1; SL 1979, ch 243; SL 1991, ch 292; SL 2001, ch 243, § 2; SL 2011, ch 168, § 1; SL 2024, ch 20, § 14.
34A-5-24. Policies and regulations for business of board--Time of meetings--Quorum.
The board of trustees shall adopt policies and regulations for the conduct of its business and shall fix a stated time at which the regular meetings of the board shall be held. A majority of the board of trustees constitutes a quorum but a smaller number may adjourn from day to day. A concurrence of the majority is necessary to any action of the board.
Source: SL 1947, ch 226, § 16; SDC Supp 1960, § 45.3816; SDCL, § 34-17-20; SL 1993, ch 256, § 24.
34A-5-25. Office of sanitary district--Record of proceedings.
The board of trustees shall establish an office within the sanitary district and shall maintain a full, complete, accurate, and itemized account of all of its proceedings, ordinances, orders, resolutions, and regulations.
Source: SL 1947, ch 226, § 16; SDC Supp 1960, § 45.3816; SDCL, § 34-17-21; SL 1993, ch 256, § 25.
34A-5-26. General powers of trustees.
The board of trustees shall have the following powers:
(1) To appoint a treasurer and a clerk, an engineer and attorney for such sanitary district and fix their compensation. Such officers shall hold their respective offices during the pleasure of said board, and shall give bond for the faithful performance of their duties as may be required by said board.
(2) To sue and be sued and to contract in the name of the district.
(3) To adopt a corporate seal.
(4) To construct and operate storm and sanitary sewers and sewage and solid waste disposal plants and systems.
(5) To borrow money, levy taxes and special assessments, issue bonds, and exercise the power of eminent domain in the same manner as municipalities of the first class in this state, provided, however, that the board of trustees shall not have the power of eminent domain over existing sewage, garbage, and refuse facilities.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815; SL 1964, ch 144, § 7; SDCL, § 34-17-22; SL 1970, ch 197, §§ 1, 2; SL 1992, ch 60, § 2.
34A-5-27. Employment of personnel for district--Professional assistance.
The board of trustees may employ and prescribe the duties and fix the compensation of all necessary officers and employees of the sanitary district, and may employ such additional engineering, legal, financial, and other professional assistance as the board deems necessary.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815 (5); SL 1964, ch 144, § 7; SDCL § 34-17-23; SL 2011, ch 165, § 91.
34A-5-28. Trustees and employees not to be interested in district transactions.
No trustee or employee of a sanitary district may be directly or indirectly interested in any contract, work, or business of the district, or the sale of any article, the expense, price, or cost of which is paid by the district, nor in the purchase of any real, personal, or other property belonging to the district, or which shall be sold for taxes or assessments, or by virtue of legal process at the suit of the district.
Source: SL 1947, ch 226, § 16; SDC Supp 1960, § 45.3816; SDCL § 34-17-24; SL 2011, ch 165, § 92.
34A-5-28.1. Trustee permitted to contract with district under certain conditions.
Notwithstanding any other provisions of law, a member of the board of trustees of a sanitary district may contract with the district for which the member serves, if the consideration consists of three thousand dollars or less per year and if the consideration for such supplies or services is reasonable and just.
Source: SL 2011, ch 169, § 1.
34A-5-29. Ordinances, resolutions, orders and regulations for district.
The board of trustees may pass and implement all necessary ordinances, resolutions, orders, and regulations for the proper management and conduct of the business of the sanitary district.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815 (6); SL 1964, ch 144, § 7; SDCL, § 34-17-25; SL 1993, ch 256, § 26.
34A-5-29.1. Adoption by reference of ordinances of contracting municipality.
If the board of trustees of a sanitary district has entered into any contract with any municipality for the purpose of using its facilities for the treatment and disposal of sewage, the sanitary district may, by ordinance, adopt by reference, in whole or in part, the ordinances of the contracting municipality which pertain to the use and regulation of the collection, treatment, and disposal of sewage. Any subsequent changes or additions to such ordinances may thereafter, by ordinance, be adopted by reference, either in whole or in part. Upon the adoption by reference of such ordinances, the clerk of the district shall publish a notice of the fact of adoption once each week for two successive weeks in the official newspaper, setting forth therein the ordinance numbers as designated in the ordinance book of the contracting municipality.
Source: SL 1985, ch 285.
34A-5-29.2. Notice requirement for passage of new ordinance or resolution.
The board of trustees may elect to waive the requirement that a new ordinance or resolution be published by providing written notice of the passage of such ordinance or resolution to each resident within the boundaries of the sanitary district. The written notice may be accomplished by sending a copy of such ordinance or resolution by first class mail, to each resident at the resident's last known address, as shown on the books and records of the sanitary district.
Source: SL 1996, ch 266, § 4.
34A-5-30. Operation of sewers and disposal plants--Tax levies, assessments and bonds--Eminent domain.
The board of trustees may construct and operate storm and sanitary sewers and sewage disposal plants, borrow money, levy taxes and special assessments, and issue bonds. Notwithstanding the provisions of § 34A-5-26, the board of trustees may borrow money for purposes described in this section and may issue a promissory note or notes for a term of up to twenty years. The board of trustees may exercise the power of eminent domain, but not over existing sewage facilities, water rights, water mains, hydrants, intakes, wells, storage tanks, reservoirs, treatment plants, or any other water facilities.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815 (7); SL 1964, ch 144, § 7; SL 1966, ch 146, § 1; SDCL, § 34-17-26; SL 1972, ch 192, § 1; SL 1990, ch 285.
34A-5-31. Proceedings governed by municipal laws--Eminent domain proceedings.
All proceedings for the construction and operation of sewer and sewage disposal plants and solid waste disposal plants and systems and the borrowing of money, making of special assessments, and issuing of bonds shall be governed, to the extent applicable, by § 9-12-1 and chapters 9-26, 9-40, 9-43, and 9-48 and in the exercise of the power of eminent domain the board of trustees may proceed as condemnation proceedings are conducted by the department of transportation under chapter 31-19 or as may otherwise be provided.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815 (7); SL 1964, ch 144, § 7; SL 1966, ch 146, § 1; SDCL, § 34-17-26; SL 1970, ch 197, § 3; SDCL Supp, § 34-17-26.1; SL 1972, ch 192, § 2.
34A-5-32. Abandonment of pending condemnation action--Reconveyance to original owner on court order--Return of deposit--Retrospective operation.
If a sanitary district commences a condemnation action and files a declaration of taking and obtains an order of possession as provided in chapter 31-19, and later abandons the action when the property is no longer necessary for public purposes or the use of which the property was originally sought to be condemned no longer exists, the board of trustees of a sanitary district, upon order of the circuit court in which the condemnation action is pending, shall convey the property to the original owner and the original owner shall return the deposit on file with the clerk of courts. This section applies to any condemnation action abandoned by a sanitary district, organized under this chapter, prior to the effective date of this section.
Source: SDCL § 34-17-26.1 as added by SL 1975, ch 221, §§ 1, 2; SDCL Supp, § 34-17-26.2; SL 2011, ch 165, § 93.
34A-5-33. Sale of surplus real property held by sanitary district--Conduct of sale--Employment of agents--Offer to prior owner.
The board of trustees of a sanitary district may sell and convey real property held by a sanitary district, the title to which has been obtained from any source, and which is not required for public purposes and has been or is about to be abandoned for public purposes. The sale and conveyance shall be conducted in accordance with chapter 6-13. In order to make the sale, the board of trustees may employ real estate agents and incur other necessary expenses.
Any real property which any sanitary district sells under the terms of this section shall first be offered for sale to the prior fee holder or the prior fee holder's heirs or assigns from whom the real property was originally purchased. The prior fee holder, heirs, and assigns have the right of first refusal to purchase the real property at its appraised value.
Source: SL 1975, ch 219; SDCL Supp, § 34-17-26.3; SL 1989, ch 30, § 62; SL 2011, ch 165, § 94.
34A-5-34. Contracts with municipalities for sewage treatment and disposal.
The board of trustees may enter into contracts with any municipality for the purpose of using the facilities of the municipality for the treatment and disposal of sewage of the district or making the facilities of the district available to the municipality.
Source: SL 1947, ch 226, § 15; SL 1953, ch 268; SDC Supp 1960, § 45.3815 (4); SL 1964, ch 144, § 7; SDCL § 34-17-27; SL 1992, ch 60, § 2; SL 2011, ch 165, § 95.
34A-5-35. Requiring connections with sewers--Assessments and charges--Construction and inspection standards for private systems.
The board of trustees may require by ordinance or resolution that all dwellings or structures within the district, or within a defined area, shall be connected with the sewers of the district. They may also require minimum sanitary facilities, immediately or within a specified period after the completion of sewers to which a connection may reasonably be made, under such regulations as are established by the resolution or ordinance. When the district finds and determines that such action is necessary for the maintenance of public health and sanitary conditions in the district it may cause any such connection to be made, and assess the cost thereof upon the land where the dwelling or structure is situated, or make an agreement with the owner or occupant to accept payment therefor in cash or in installments payable with other sewer rates and charges over such period as may be agreed. The district may impose and collect charges for the availability of sewer service to any properties so directed to be connected, whether or not such connection is made. The board of trustees shall have exclusive jurisdiction to establish by ordinance or resolution standards for construction and inspection of private sewer systems within its boundaries, in conformity with state county laws and regulations.
Source: SDC Supp 1960, § 45.3815 (9) as added by SL 1964, ch 144, § 7; SDCL, § 34-17-28; SL 1980, ch 248.
34A-5-36. Rates and charges for sanitary services--Measures for protection of bondholders.
The board of trustees may:
(1) Fix reasonable rates and charges for services furnished and made available by the district to users of its facilities;
(2) Provide for the collection of the charges;
(3) Pledge the net revenues derived from the charges to the payment of bonds made payable wholly or partly from the revenues; and
(4) Make and enforce on behalf of the district all covenants relating to:
(a) The proper operation and maintenance of the facilities;
(b) Insurance against hazards of loss and liability;
(c) The administration, expenditure and auditing of the income and revenues of the district;
(d) The expenditure of the bond proceeds; and
(e) All other matters affecting the security of the bonds, which the board of trustees determines to be necessary or desirable for the purpose of selling the bonds upon terms advantageous to the district and maintaining its credit and ability to engage in further financing when and as necessary.
Source: SL 1953, ch 268; SDC Supp 1960, § 45.3815 (8); SL 1964, ch 144, § 7; SDCL § 34-17-29; SL 2011, ch 165, § 96.
34A-5-37. Rates and charges to be sufficient for operation of facilities and retirement of revenue bonds.
If revenue bonds are issued in accordance with the provisions of chapter 9-40, the sanitary district shall, until all such bonds and interest on the bonds are fully paid, fix such rates and charges and revise them from time to time in such manner that the collections of the charges will be adequate to:
(1) Pay all current, reasonable, and necessary expenses of the operation and maintenance of all facilities whose revenues are pledged for the payment of the bonds;
(2) Produce net revenues, in excess of such current costs of operation and maintenance, at all times sufficient to pay the principal and interest due on the bonds; and
(3) Accumulate and maintain reserves for the further security of the bonds in such amounts as are agreed in the resolutions authorizing the bonds.
Source: SDC Supp 1960, § 45.3815 (8) as added by SL 1964, ch 144, § 7; SDCL § 34-17-30; SL 2011, ch 165, § 97.
34A-5-38. Rates and charges for retirement of bonds in lieu of special assessment certificates--Financing of improvements.
If bonds are issued in lieu of special assessment certificates in accordance with the provisions of chapter 9-43, the sanitary district board of trustees may provide that rates and charges shall be fixed and from time to time revised to produce net revenues at all times sufficient, with special assessments and interest pledged to the bond fund and actually collected and received in the bond fund, to pay all principal and interest when due on the bonds and to create and maintain such further reserves for the security of the bonds as may be agreed in the resolutions authorizing the bonds. Bonds issued and secured as authorized in this section may be designated as special assessment and revenue bonds, and may be issued to finance an improvement or a group of improvements to the facilities of the district, if any portion of the cost of the improvement is to be paid by the levy of special assessments.
Source: SDC Supp 1960, § 45.3815 (8) as added by SL 1964, ch 144, § 7; SDCL § 34-17-31; SL 2011, ch 165, § 98.
34A-5-39. Sanitary districts not subject to certain municipal sewer system requirements.
If a sanitary district has been established in accordance with the procedures provided in this chapter, no further proceedings are required under the provisions of §§ 9-48-26 to 9-48-31, inclusive, and funds derived from the district's sewer rates and charges are not subject to the limitations provided in those sections.
Source: SDC Supp 1960, § 45.3815 (8) as added by SL 1964, ch 144, § 7; SDCL § 34-17-32; SL 2011, ch 165, § 99.
34A-5-40. Certification of unpaid charges and tax levies--Collection with real estate taxes--Tax sales.
The board of trustees may cause the amount of any charges, and interest and penalties on the charges, for sewer service rendered or made available to any land within the district, which are due and unpaid on the first day of October in each year to be certified by the clerk of the district to the county auditor in the manner provided in § 10-12-7 together with any taxes levied by the district for corporate purposes. All amounts so certified shall be inserted by the county auditor upon the tax list of the current year and shall be payable and delinquent at the same time and shall incur penalty and interest and shall be collected by the same procedure as real estate taxes on the same property. In the event of a tax sale or the issuance of a tax deed, the provisions of §§ 9-43-112 and 9-43-113 shall apply to all amounts so certified and then delinquent, in the same manner as delinquent installments of special assessments.
Source: SDC Supp 1960, § 45.3815 (10) as added by SL 1964, ch 144, § 7; SDCL § 34-17-33; SL 2011, ch 165, § 100; SL 2021, ch 43, § 25.
34A-5-41. Election on acquisition and operation of water system--Board powers on approval.
The board of trustees of any sanitary district incorporated under this chapter may submit to the voters of the district at an annual election or a special election called and held in accordance with chapter 9-13 the question whether the district shall be authorized to acquire and operate a water system, or the application for incorporation filed in accordance with § 34A-5-6 may request such authority. Upon approval of the grant of such authority by a majority of the qualified electors voting on the question, or upon entry of the order incorporating the district if the application has requested such authority, the board of trustees may:
(1) Acquire and operate water mains, hydrants, intakes, wells, storage tanks and reservoirs, treatment plants, and all other facilities used or useful for the supply and distribution of water;
(2) Acquire and operate any of such facilities; and
(3) Contract for the service of any such facilities owned by the adjacent municipality or for the use of district facilities by the municipality.
In connection with all such matters the district and its board of trustees have all powers granted in this chapter with reference to sewer facilities. In the exercise of such powers the board of trustees may purchase any existing facilities used or useful in the exercise of such powers, or may contract for the construction of any such facilities in the manner provided in chapters 5-18A and 5-18B.
Source: SL 1966, ch 146, § 3; SDCL § 34-17-34; SL 1992, ch 60, § 2; SL 2011, ch 2, § 140; SL 2011, ch 165, § 101.
34A-5-42. Petition for annexation or exclusion of territory--Resolution of intention--Notice of hearing.
On petition in writing signed by not less than twenty percent of the legal voters residing within the district, as shown by the vote for the member of the board of trustees receiving the highest vote at large at the last preceding annual election in the district or upon its own motion, the board of trustees by proper resolution may declare its intention to annex territory lying adjacent to the district or exclude territory being upon the border of the district. The resolution shall describe the property, the intended action, and the time and place the trustees will meet to consider the adoption of the resolution. The resolution shall be published once a week for two consecutive weeks before the time set for the hearing.
Source: SL 1967, ch 227, § 1; SDCL § 34-17-35; SL 2011, ch 165, § 102.
34A-5-43. Hearing and resolution to annex or exclude territory--County commissioners' approval required.
At the time of the hearing, or of any adjournment of the hearing, the trustees shall consider any objections to the proposed resolution and may adopt the resolution, with or without amendment, as it may deem proper. However, no amendment may be made affecting any property not described in the original resolution. No such resolution may be adopted unless the resolution has been approved by the board of county commissioners of the county in which the land is situated.
Source: SL 1967, ch 227, § 2; SDCL § 34-17-36; SL 2011, ch 165, § 103.
34A-5-44. Appeal to circuit court from denial of annexation or exclusion of territory--Notice, hearing and order of court.
Upon failure of the board of trustees to grant the request contained in the petition of the voters, the petitioners or any party feeling aggrieved thereby may within thirty days after the decision of the board of trustees or county commissioners, or within ninety days after the filing of the petition if no action has been taken on the petition by the board, present their petition or appeal to the circuit court for the county in which the district or the greater portion of the district is situated by filing the petition or appeal with the clerk of courts. Notice of the filing shall be served by the petitioners upon the president of the board of trustees together with a notice of the time and place, when and where a hearing will be held on the petition, at least ten days before the date of the hearing. If the court finds that the request of the petitioners ought to be granted and can be granted without injustice to the district, the court shall so order. If the court finds against the petitioners, the petition or appeal shall be dismissed at the cost of the petitioners.
Source: SL 1967, ch 227, § 3; SDCL § 34-17-37; SL 2011, ch 165, § 104.
34A-5-45. Recording of map and resolution after annexation or exclusion of territory.
If the limits of any district are changed by resolution or by decree of court, the president of the board of trustees shall cause an accurate map of the territory, together with a copy of the resolution or decree, duly certified, to be recorded in the office of the register of deeds of the county or counties in which the territory is situated and thereupon the territory becomes a part of the district or is excluded from the district, as the case may be.
Source: SL 1967, ch 227, § 4; SDCL § 34-17-38; SL 2011, ch 165, § 105.
34A-5-46. Formation of consolidated district authorized--Resolutions of governing bodies proposing formation.
A municipality and a sanitary district, or any group of two or more such public corporations may form a consolidated sanitary district, comprising their combined area in a manner set forth in this section and §§ 34A-5-47 to 34A-5-51, inclusive. The governing body of each of the corporations shall by resolution propose the formation of the consolidated sanitary district, specifying the municipalities and sanitary districts proposed to be included within its boundaries, and whether the district shall be authorized to acquire and operate sewer facilities or both water and sewer facilities.
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL, § 34-17-39; SL 1992, ch 60, § 2.
34A-5-47. Election on formation of consolidated district--Form of ballot.
The governing body of each of the corporations described in § 34A-5-46 shall by resolution submit the question of consolidation to the voters of such corporation at a special election called for the purpose or at the next regular election. The proposition shall be submitted to the voters of each corporation on a separate ballot and shall be so stated as to enable each voter to vote for or against the proposed consolidation by making a cross x or check mark () in the square or circle preceding the phrase "For the formation of a consolidated sanitary district comprising the (naming the corporations to be included) with power to construct or acquire and operate sewer facilities (or, water and sewer facilities)."
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL, § 34-17-40.
34A-5-48. Resolutions after approval of consolidated district by voters--Filing of proceedings.
If the voters of each corporation approve the formation of the consolidated sanitary district by a majority of their votes cast on the consolidation question, the governing body of each corporation shall so declare by resolution. Each governing body shall cause a certified copy of all proceedings taken for the consolidation to be filed with its auditor or clerk, with the secretary of state, and in the office of the register of deeds of the county, who shall record the copy. When the certified copies are filed, the consolidation is effective and complete, and the consolidated sanitary district has all of the powers conferred upon a sanitary district by this chapter, for the purpose of the construction or acquisition and operation of sewer facilities or both water and sewer facilities, as authorized by the voters.
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL § 34-17-41; SL 2011, ch 165, § 106.
34A-5-49. Property not acquired nor debts assumed by incorporation of consolidated district.
The consolidated sanitary district may not, however, by virtue of its incorporation, acquire any of the property or assume any of the debts, obligations, or liabilities of any municipality or sanitary district included within its boundaries.
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL § 34-17-42; SL 1992, ch 60, § 2; SL 2011, ch 165, § 107.
34A-5-50. Board of trustees for consolidated district.
Forthwith upon the creation of a consolidated sanitary district, a board of trustees shall be elected and govern the consolidated sanitary district in the same manner as provided with reference to other sanitary districts by §§ 34A-5-16 to 34A-5-40, inclusive.
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL, § 34-17-43.
34A-5-51. Contracts of consolidated district for purchase or use of sanitary facilities.
A consolidated sanitary district may contract with any municipality or sanitary district, within or outside its corporate limits, for the purchase of facilities of the type which it is authorized to construct or acquire and operate, or may contract for the use of such facilities, and for the use of consolidated sanitary district facilities by another municipality or sanitary district, upon such terms as may be agreed.
Source: SL 1964, ch 144, § 8; SL 1966, ch 146, § 2; SL 1967, ch 226; SDCL, § 34-17-44; SL 1992, ch 60, § 2.
34A-5-52. Validation of prior proceedings of sanitary districts--Deadline for enforcing rights.
All sanitary sewer districts, established pursuant to chapter 34A-5, and having a de facto existence of one year or more by December 31, 1979, are declared to be valid and legally created subdivisions of the state. The validity and regularity of the creation of these sanitary districts may not be open to question in any court in this state, and all acts and proceedings of any such sanitary district or the board of trustees, or both, including those proceedings leading up to the authorization and execution of contracts between any such sanitary district and the United States of America as of December 31, 1979, are hereby legalized, ratified, confirmed, and declared valid to all intents and purposes. All completed or existing contracts, including outstanding bonds as of December 31, 1979, are hereby legalized and declared to be valid obligations of and against the sanitary district executing or causing the execution and issuance of them.
If any person has any vested right or rights affected by this section, and action or proceeding to enforce such right or rights is not commenced prior to January 1, 1981, such right or rights shall be forever barred, and no action or proceeding so brought may have any force or effect, or may be maintained in any court of this state.
Source: SL 1964, ch 144, § 10; SDCL, § 34-17-45; SL 1980, ch 249.
34A-5-53. Dissolution of district on voters' petition.
A majority of the qualified voters of an incorporated sanitary district may petition a court of competent jurisdiction for the dissolution of the sanitary district. Dissolution proceedings shall, when not in conflict with this chapter, conform to the provisions for dissolution of municipalities pursuant to chapter 9-6.
Source: SL 1973, ch 223, § 1; SDCL Supp, § 34-17-47.
34A-5-54. Dissolution of district by directors' resolution on annexation to municipality--Notice and hearing--Appeal.
Notwithstanding the provisions of § 34A-5-53, the board of trustees of an incorporated sanitary district, the entire boundaries of which have been annexed to a municipality, may by unanimously adopting a proper resolution, provide for the dissolution of the sanitary district and the disposition of all unencumbered assets and assets which may thereinafter accrue. Prior to adopting such resolution, the board shall give notice and conduct hearings as it deems necessary. Any party feeling aggrieved by the decision of the board may appeal pursuant to the provisions of § 34A-5-44.
Source: SL 1973, ch 223, § 2; SDCL Supp, § 34-17-48.
34A-5-54.1. Assumption of bonded indebtedness of district by municipality--Election.
The outstanding bonded indebtedness of any sanitary district that dissolves itself may be assumed by a municipality that assumes the assets of such sanitary district. Before a municipality may assume such bonded indebtedness, the governing body of the municipality shall by resolution or ordinance declare the necessity thereof and shall hold an election pursuant to §§ 6-8B-4 and 6-8B-5. The notice of the election and the form of the ballot shall inform the voters of such municipality that the purpose of the election is to assume the bonded indebtedness of such sanitary district. The approval of the assumption of such debt shall require a favorable vote of a majority of the voters of the public body voting on the question. Before any election may be held on such assumption, the holder of such bonds shall, in writing, approve the question.
Source: SL 1986, ch 293, § 1.
34A-5-56. Certified copy of budget to county auditors and secretary of revenue.
Immediately after completion of a budget and adoption of special assessments by a sanitary district board of trustees, but not later than the first of September, the secretary of the district shall send one certified copy of such budget to the county auditors of the affected counties and to the state secretary of revenue.
Source: SL 1992, ch 73, § 5.
CHAPTER 34A-6
SOLID WASTE MANAGEMENT
34A-6-1 34A-6-1. Repealed by SL 1989, ch 306, § 1.
34A-6-1.1 Legislative findings.
34A-6-1.2 Solid waste management policy established.
34A-6-1.3 Definition of terms.
34A-6-1.4 Unauthorized construction or operation of site or facility prohibited--Unauthorized dumping, disposal in water, burning prohibited--Exception--Penalties for violation.
34A-6-1.5 Repealed by SL 2012, ch 215, § 31.
34A-6-1.6 Promulgation of rules--Factors for consideration--Scope--Open burning.
34A-6-1.7 Groundwater monitoring system required--Exception.
34A-6-1.8 Areas addressed in application--Exception.
34A-6-1.9 Perpetual responsibility for solid waste and liability for pollution.
34A-6-1.10 Responsibility and liability of owner or operator.
34A-6-1.11 Financial assurance instrument--Condition for permit.
34A-6-1.12 Maintenance of closure and post-closure accounts--Requirements.
34A-6-1.13 Notice and opportunity for hearing--Issuance of permit--Contested cases--Grounds for denial.
34A-6-1.14 Promulgation of rules specifying procedure for permit issuance, amendment, suspension, revocation, and reinstatement--Recommendation of secretary--Notice and hearing.
34A-6-1.15 Amendment of permit--Procedure--Grounds.
34A-6-1.16 Initial validity period of permits--Renewal--Assessment of fees.
34A-6-1.17 Additional fee imposed upon disposal of certain solid waste.
34A-6-1.18 Sections not applicable.
34A-6-1.19 Requirements relating to board's inability to inspect out-of-state solid waste at point of origin--Maintenance and filing of certain records.
34A-6-1.20 Periodic inspections--On-site investigations.
34A-6-1.21 Suspension or revocation of permit--Grounds--Notice and hearing.
34A-6-1.22 Notice of violation--Contents.
34A-6-1.23 Secretary may require appearance for public hearing--Alternative procedures.
34A-6-1.24 Decision by board--Scope and content of order.
34A-6-1.25 Effect of appeal upon order.
34A-6-1.26 Issuance of emergency order--Purpose--Noncompliance.
34A-6-1.27 Hearing upon emergency order--Time and place--Procedure.
34A-6-1.28 Suit by secretary on behalf of state.
34A-6-1.29 Department may seek to enjoin threatened or actual violation--Bond unnecessary--Temporary relief available.
34A-6-1.30 34A-6-1.30. Repealed by SL 1992, ch 158, § 40.
34A-6-1.31 Operation of facility without or in violation of permit--Penalties--Civil penalty.
34A-6-1.32 34A-6-1.32. Repealed by SL 1992, ch 158, § 42.
34A-6-1.33 Exhaustion of administrative remedies not required.
34A-6-1.34 Enforcement of rules by board through permit procedures--Department as designated agency for purposes of federal laws.
34A-6-1.35 Functions of department--Delegation of duties and authority--Power to accept and administer grants and loans.
34A-6-1.36 34A-6-1.36. Omitted.
34A-6-1.37 34A-6-1.37. Omitted.
34A-6-1.38 County or municipal imposition and levy of disposal fee--Payment and collection--Distribution of shares.
34A-6-1.39 34A-6-1.39. Omitted.
34A-6-1.40 Removal of improperly disposed solid waste--Alternative means of disposal.
34A-6-2 34A-6-2 to 34A-6-16. Repealed by SL 1989, ch 306, § 1.
34A-6-17 Plans for county systems--Submission to state board.
34A-6-18 County grant of franchises--Approval by voters--Maximum period.
34A-6-19 Municipal procedure applied to counties--General election laws apply.
34A-6-20 County agreements with other political subdivisions and persons.
34A-6-21 County assumption of responsibility for wastes within municipalities.
34A-6-22 Sanitary districts and counties to have municipal rights and responsibilities.
34A-6-23 34A-6-23. Repealed by SL 2015, ch 192, § 1.
34A-6-24 Municipal grant of franchises--Maximum period.
34A-6-25 Vote required for municipal grant of franchise--General or special election--Adoption of ordinance before vote--Notice of election.
34A-6-26 Municipal agreements with other political subdivisions and persons--Maximum duration.
34A-6-27 City-county combinations to grant franchises--Approval by voters--Approval or rejection by subdivisions.
34A-6-28 Municipal procedure applied to combined city-county grants of franchises--General election laws apply--One election.
34A-6-29 Subdivision fees, charges, and license requirements--Collection of delinquent charges.
34A-6-30 34A-6-30 to 34A-6-36. Repealed by SL 1986, ch 291, §§ 26 to 32.
34A-6-37 Acceptance and disbursement of funds for solid waste or recycling facility or system.
34A-6-38 Municipal acquisition of property--Maximum duration of contract--Shares of parties to regional or county solid waste authority.
34A-6-39 Appropriations for long-term contracts.
34A-6-40 Policies and requirements for operation of system.
34A-6-41 Local standards for sites and facilities.
34A-6-42 34A-6-42 to 34A-6-49. Repealed by SL 1989, ch 306, § 1.
34A-6-50 34A-6-50. Repealed by SL 2011, ch 165, § 121.
34A-6-52 34A-6-52. Repealed by SL 1993, ch 2, § 31.
34A-6-53 Legislative approval required for large-scale solid waste facilities--Requirements--Exception.
34A-6-54 Definition of large-scale solid waste facility.
34A-6-55 Existing facilities to cease until legislative approval is obtained.
34A-6-56 Approval requirements are retroactive.
34A-6-57 34A-6-57. Rejected by referred law no 1, November 3, 1992.
34A-6-58 General permit for category of solid waste treatment, storage or disposal--Terms and conditions--Suspension, revocation or modification.
34A-6-59 Legislative findings.
34A-6-60 Legislative intent to reduce amount of solid waste disposed in landfills.
34A-6-61 Definitions.
34A-6-62 Waste reduction and recycling program established.
34A-6-63 Elements of waste reduction and recycling program.
34A-6-63.1 Policies and requirements for purchase, sale, or transfer of solid waste or by-products, recyclable materials, or scrap by local government facility or program.
34A-6-64 Disposal of tires.
34A-6-66 Waste tire stockpiling and processing facilities—Promulgation of rules.
34A-6-67 Landfill waste reduction targets--Implementation dates.
34A-6-68 Code required for rigid plastic bottle or rigid plastic container.
34A-6-69 Inspection of facilities.
34A-6-70 Solid waste evaluation.
34A-6-71 Regionalization of recycling and solid waste operations.
34A-6-73 Responsible units of governments--Evaluation of capacity.
34A-6-74 Filing of solid waste source reduction and recycling plan--Department review and aid in development--Hearings--Updating of plans.
34A-6-75 Plan required for issuance of new or renewed permit.
34A-6-76 Documentation of beginning implementation of plan required for new or renewed permit.
34A-6-77 Documentation of alternatives to landfills required for reissued or renewed permit.
34A-6-78 Certification of landfill as necessary part of alternative solid waste management required for new permit.
34A-6-79 Assistance to individuals, businesses, government with regard to solid waste management--Specifications.
34A-6-80 Educational and training programs on solid waste management--Training program audiences.
34A-6-81 Solid waste management disposal fee--Calculation.
34A-6-82 Payment of disposal fee by landfill owner--Accrual of obligation--Date due--Records.
34A-6-83 Tire solid waste management fee on motor vehicles--Collection.
34A-6-84 Payment of tire management fee by owner of motor vehicle--Date due--Exemption for United States and Indian tribe property.
34A-6-85 Deposit of fees in environment and natural resources fee fund and water and environment fund--Expenditures, grants, and loans from water and environment fund--Preferences.
34A-6-85.1 Financial assistance for statewide cleanup of waste tires.
34A-6-87 Illegal dumping penalties.
34A-6-87.1 Disposal of tire waste--Collection or processing sites--Penalties for violations.
34A-6-88 34A-6-88. Transferred to § 46A-1-83.1.
34A-6-89 Scale device required--Records--Report--Contents--Permit for longer capacity disposal.
34A-6-90 34A-6-90. Transferred to § 46A-1-83.2.
34A-6-91 Wholesaler or retailer exchange of lead acid batteries.
34A-6-92 Beverage containers, garbage bags, and plastic packaging materials--Preemption--Specially designated garbage bags.
34A-6-93 Infectious waste defined.
34A-6-93.1 Medical waste defined.
34A-6-94 Unlawful possession of infectious waste in the second degree--Violation as misdemeanor.
34A-6-95 First degree unlawful possession of infectious waste--Felony.
34A-6-96 Unlawful release of infectious waste in fourth degree.
34A-6-97 Unlawful release of infectious waste in third degree.
34A-6-98 Unlawful release of infectious waste in second degree.
34A-6-99 Unlawful release of infectious waste in first degree.
34A-6-100 Unlawful dealing in infectious waste.
34A-6-101 Court-imposed monetary penalties.
34A-6-102 Disposition of fines.
34A-6-102.1 Unlawful release of medical waste to recycling disposal destination--Misdemeanor.
34A-6-102.2 Actual knowledge of hauler or transporter required.
34A-6-103 County approval required for solid waste or medical waste transportation, storage, treatment or disposal.
34A-6-103.1 Board of commissioners' meetings required before approval of solid waste facility--Applicant to provide information--Preliminary approval--Notice--Costs of notice.
34A-6-104 Promulgation of certain rules in state solid waste programs.
34A-6-105 Big Stone power plant approved.
34A-6-106 Sioux Falls/Regional Sanitary Landfill approved.
34A-6-107 Purchase of certain beer kegs by recycler, scrap metal dealer, or scrap yard operator prohibited--Violation as misdemeanor.
34A-6-108 Definition of terms.
34A-6-109 Scrap metal business--Recordkeeping requirements.
34A-6-109.1 Purchases to be made by check or electronic funds transfer.
34A-6-109.2 Purchase of catalytic converters--Limitations.
34A-6-110 Scrap metal business records open to inspection by law enforcement officers.
34A-6-111 Copies of scrap metal business records--Report of lost or stolen nonferrous metal property.
34A-6-112 Hold on nonferrous metal item suspected to be lost or stolen.
34A-6-113 Disposal of certain oil and gas field liquid wastes prohibited.
34A-6-114 Disposal of certain radionuclides at solid waste facility prohibited.
34A-6-1.1. Legislative findings.
The Legislature finds that other states have imposed stringent standards for the proper collection and disposal of solid waste and that without such standards and enforcement of them, South Dakota could be burdened with the importation and disposal in the state of large amounts of solid waste from other states by persons and firms who may not have the capability to properly dispose of the waste or who wish to avoid the costs and requirements for proper, effective and safe disposal of such waste in the state of origin.
The Legislature finds that the disposal of large quantities of solid waste in this state will, in fact, impose additional burdens on the citizens of this state. Experience has shown that under the system of laws currently governing waste disposal in this country, this liability can be significant. For these and other reasons, the Legislature finds that it is reasonable and necessary to require that any person intending to dispose of waste in this state comply with the provisions of §§ 34A-6-1.2 to 34A-6-1.38, inclusive.
The Legislature further finds that to ensure a minimum safe level of solid waste regulation nationally, the United States Environmental Protection Agency is promulgating a comprehensive set of rules to govern the disposal of solid waste and that South Dakota must be prepared to comply with those rules.
Source: SL 1989, ch 306, § 2.
34A-6-1.2. Solid waste management policy established.
The protection of the health, safety, and welfare of the citizens of this state and the protection of the environment require the safe and sanitary disposal of solid waste. An effective and efficient solid waste disposal program protects the environment and the public, and provides the most practical and beneficial use of the material and energy values of solid waste. While recognizing the continuing necessity for the existence of landfills, alternative methods of managing solid waste and the reduction in the reliance upon land disposal of solid waste are encouraged. To promote these goals, the following solid waste management hierarchy, in descending order of preference, is established as the solid waste management policy of the state:
(1) Volume reduction at the source.
(2) Recycling and reuse.
(3) Use for energy production, if appropriate.
(4) Disposal in landfills or combustion for volume reduction.
In the implementation of this solid waste management policy, the state shall establish and maintain a cooperative state and local program of project planning, and technical and financial assistance to encourage comprehensive solid waste management.
Source: SL 1989, ch 306, § 3.
34A-6-1.3. Definition of terms.
The terms used in §§ 34A-6-1.1 to 34A-6-1.38, inclusive, mean:
(1) "Actual cost," the planning, development, operational, remedial and emergency action, closure, postclosure, and monitoring costs of a solid waste facility for the lifetime of the project;
(2) "Board," the Board of Minerals and Environment;
(3) "Closure," actions taken by the owner or operator of a solid waste facility or site to cease disposal operations and to ensure that all such facilities are closed in conformance with applicable regulations at the time of such closures and to prepare the site for the postclosure period;
(4) "Department," the Department of Agriculture and Natural Resources;
(5) "Facility," a solid waste facility as defined in subdivision (18) of this section;
(6) "Financial assurance instrument," cash or other instrument as allowed by rule or permit, submitted by an applicant to ensure the owner's financial capability to provide reasonable and necessary compliance with the laws, regulations and permit terms and conditions applicable to the facility during the lifetime of the project and for the thirty years following closure, and to provide for the closure of the facility and postclosure care required by rules adopted by the board pursuant to chapter 1-26 in the event that the operator fails to correctly perform closure and postclosure care requirements;
(7) "Landfill," a solid waste disposal facility or part of a facility where solid waste is permanently placed in or on land;
(8) "Leachate," fluid that has percolated through solid waste and which contains contaminants consisting of dissolved or suspended materials, chemicals, or microbial waste products from the solid waste;
(9) "Lifetime of the project," the projected period of years that a facility will receive waste, from the time of opening until closure. In the case of a landfill this shall be based on the volume of waste to be received projected at the time of submittal of the initial project plan and the calculated refuse capacity of the landfill based upon the design of the project;
(10) "Mine wastes," waste rock, rubble, or tailings produced as a result of mining or ore processing operations. The term does not include other wastes produced at a mining operation;
(10A) "Perpetuity," the life of the solid waste facility plus an additional fifty years;
(11) "Person," any individual, partnership, limited liability company, firm, association, municipality, public or private corporation, state, tribe, nation, subdivision or agency of a state, tribe or nation, trust, estate, or any other legal entity;
(12) "Postclosure" and "postclosure care," requirements placed upon a solid waste disposal facility after closure that will prevent, mitigate or minimize the threat to public health, safety, and welfare and the threat to the environment posed by the closed facility;
(13) "Regional entity," any combination or group of municipalities, counties, or sanitary districts in this state operating or seeking to operate in a joint venture, pursuant to chapter 1-24, a solid waste management system or part thereof in compliance with §§ 34A-6-1.1 to 34A-6-1.38, inclusive;
(14) "Resource recovery system," the recovery and separation for reuse of ferrous or nonferrous metals, glass, aluminum, paper, organic material, or any other material having a probable potential for reuse and the preparation and burning of solid waste as fuel for the production of electricity, steam or heat;
(15) "Rules," rules promulgated by the board pursuant to the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive;
(16) "Secretary," the secretary of agriculture and natural resources;
(17) "Solid waste," any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, and agricultural operations, and from community activities, but does not include mining waste in connection with a mine permitted under Title 45, hazardous waste as defined under chapter 34A-11, solid or dissolved materials in domestic sewage or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended to January 1, 2011, or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended to January 1, 2011;
(18) "Solid waste facility" or "solid waste disposal facility," all facilities and appurtenances connected with such facilities, which are acquired, purchased, constructed, reconstructed, equipped, improved, extended, maintained, or operated to facilitate the disposal or storage of solid waste; and
(19) "Solid waste management system," the entire process of storage, collection, transportation, processing, and disposal of solid wastes by any person.
Source: SL 1989, ch 306, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 68; SL 2011, ch 165, § 109; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-6-1.4. Unauthorized construction or operation of site or facility prohibited--Unauthorized dumping, disposal in water, burning prohibited--Exception--Penalties for violation.
No person may construct, alter, or operate a solid waste disposal site or facility without a permit or in violation of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, the rules or the terms and conditions of the facility permit. Nor may any person dump, abandon, or dispose of any solid waste that will not be regularly collected and deposited or directly disposed of at a permitted solid waste facility or other site approved by the board.
No person may dispose of, or place, solid waste in the waters of this state except to the extent that such disposal or placement is authorized by chapter 34A-2 and the water pollution control laws of the United States. No person may burn solid waste except as provided by § 34A-6-1.6 and except in a manner and under conditions approved by the department or board pursuant to chapter 34A-1.
No provision of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, may be construed so as to prohibit a farmer or rancher from disposing of solid waste from normal farming operations or ordinary domestic activities upon his own land provided such disposal does not create a nuisance or a hazard to public health, does not violate a local ordinance, will not unlawfully pollute ground or surface waters or does not violate chapter 34A-1 or 34A-2 or the water or air pollution control laws of the United States.
A violation of this section is a Class 2 misdemeanor. The violator is also subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than ten thousand dollars per day per violation, for damages to compensate the state for impairment of the environment of this state, or both. An action for the recovery of a civil penalty or compensatory damages shall, upon demand, be tried by a jury.
Source: SL 1989, ch 306, § 5; SL 1992, ch 158, § 39.
34A-6-1.5. Repealed by SL 2012, ch 215, § 31.
34A-6-1.6. Promulgation of rules--Factors for consideration--Scope--Open burning.
The board shall promulgate rules pursuant to chapter 1-26 setting forth the requirements for the issuance, renewal, reissuance, revocation, or suspension of solid waste management system, solid waste facility, and resource recovery permits. In promulgating these rules the board shall consider and may establish requirements based on the protection of the public health, the quantity of solid waste to be handled, the environmental effects of solid waste facilities, the nature, origin, or characteristics of the solid waste, the potential for contamination of groundwater and surface water, requirements and standards for corrective actions, requirements for public roadway standards, and design for access to the facilities with approval by the secretary of the Department of Transportation, public sentiment, the financial capability of the applicant, the effects of a facility on vicinity property values, population density, climate, soils, geology, wetlands, and other health, environmental, economic, or aesthetic considerations.
The rules shall establish standards for the collection, possession, storage, transportation, processing, resource recovery, recycling, or disposal of solid waste including medical waste and infectious waste. The rules shall include the location, construction, operation, compliance deadlines, maintenance, closure, postclosure, groundwater monitoring, leachate control and treatment, methane monitoring and control, and financial assurance standards and requirements for solid waste facilities as necessary to implement the purpose and intent of § 34A-6-1.2. Based upon these considerations, the board may declare by rule, or find in a specific case, that a specified geographical area of the state possesses special or unique characteristics subject to specific requirements, and the board may prohibit the installation or establishment of specific types or sizes of solid waste facilities in these specified geographical areas of the state based on these findings.
Open burning is allowable, unless prohibited by federal law, subject to chapter 34A-1, by municipalities of five thousand or less or by counties for persons living within the county but outside the boundaries of municipalities, if the municipality or county facility does not receive solid waste from more than fifty miles outside its boundaries.
Source: SL 1989, ch 306, § 7; SL 1992, ch 254, § 50S; SL 1992, ch 259, § 11.
34A-6-1.7. Groundwater monitoring system required--Exception.
The board shall require that, unless it is demonstrated in a specific case that groundwater degradation will not occur, the holder of the permit for each landfill permitted pursuant to § 34A-6-1.13, shall install and maintain a groundwater monitoring system to adequately determine the quality of the groundwater and the effects of the landfill upon it, if any. The rules and decisions of the board and the department shall operate in conjunction with the groundwater rules promulgated by the Board of Water Management pursuant to chapter 34A-2 and shall protect groundwater from degradation by solid waste to the greatest extent practicable.
Source: SL 1989, ch 306, § 8.
34A-6-1.8. Areas addressed in application--Exception.
Each of the following specific areas shall be addressed in detail in the application unless the secretary in accordance with rules promulgated pursuant to § 34A-6-1.6 determines that it is inappropriate for the specific type of facility:
(1) An operations plan which details the specific disposal or resource recovery method to be used including the daily and weekly disposal and cover routine, litter control, source controls and monitoring, occupational safety, dust control, weigh-in, and fee collection method where applicable, and quality control;
(2) A closure and post-closure plan detailing the schedule for and the methods by which the operator will meet the conditions for proper closure and post-closure adopted by rule by the board. The plan shall include the proposed frequency and types of actions to be implemented prior to and following the closure of an operation, the proposed post-closure actions to be taken to return the area to a condition suitable for other uses, and an estimate of the costs of closure and post-closure and the proposed method of meeting these costs. The post-closure plan shall cover the thirty-year time period following closure of the facility;
(3) A plan for the control and treatment of leachate and methane;
(4) A financial plan detailing the actual cost of all phases and components of the comprehensive plan and the solid waste facility and the funding sources for the project. In addition to the submittal of the financial plan filed pursuant to this division, the operator of an existing landfill shall submit an annual financial statement to the department; and
(5) An emergency response and remedial action plan including provisions to minimize the possibility of fire, explosion, or any release to air, land, or water of pollutants that could threaten human health and the environment, and the identification of possible occurrences that may endanger human health and environment.
Source: SL 1989, ch 306, § 10; SL 1993, ch 256, § 27.
34A-6-1.9. Perpetual responsibility for solid waste and liability for pollution.
Any nation, state, first or second class municipality, county, or political subdivision which has solid waste generated within its boundaries disposed of in this state shall be responsible in perpetuity for the solid waste and liable in perpetuity for any pollution or other deleterious effect caused by it.
Source: SL 1989, ch 306, § 11; SL 1992, ch 60, § 2.
34A-6-1.10. Responsibility and liability of owner or operator.
The owner or operator of a solid waste disposal facility that is regulated under §§ 34A-6-1.1 to 34A-6-1.38, inclusive, is responsible in perpetuity for the solid waste and liable in perpetuity for any pollution or other detrimental effect caused by the solid waste. No person may dispose of solid waste other than mine wastes in this state until the owner or operator of the solid waste disposal facility executes an agreement with the board acknowledging such perpetual responsibility and liability for the solid waste.
Source: SL 1989, ch 306, § 11A.
34A-6-1.11. Financial assurance instrument--Condition for permit.
The board may require as a condition of any permit a financial assurance instrument in a form and an amount prescribed by rules promulgated pursuant to § 34A-6-1.6 or by the specific permit terms and conditions, sufficient to assure performance of the obligations imposed by this chapter and the other environmental laws of this state. The amount and form of the financial assurance instrument shall be specified in the permit.
The financial assurance instrument shall meet all requirements adopted by rule by the board, shall be in the name of and constitute an asset of the state, may not constitute an asset of the owner prior to release by the board, and may not be cancelled, revoked, disbursed, released, allowed to terminate, or subject to process of any kind by creditors except to the extent that the board has released the owner from operational performance, closure, post-closure, or monitoring responsibilities.
Source: SL 1989, ch 306, § 12; SL 1993, ch 256, § 28.
34A-6-1.12. Maintenance of closure and post-closure accounts--Requirements.
In addition to financial assurance instruments for environmental protection, the board may require the owner to maintain closure and post-closure accounts. The board shall adopt by rule the amounts to be contributed to the accounts. The accounts established shall be specific to the facility.
(1) Money in the accounts may not be assigned or otherwise encumbered for the benefit of creditors with the exception of the state.
(2) Money in an account may not be used to pay any final judgment against a permittee arising out of the ownership or operation of the site during its active life or after closure.
(3) Conditions under which the department may gain access to the accounts and circumstances under which the accounts may be released to the operator after closure and post-closure responsibilities have been met shall be established by the board.
(4) Money in the accounts shall be exempt from execution by creditors except fines, penalties, or damages due the state.
(5) The annual financial statement submitted to the department shall include the current amounts established in each of the accounts and the projected amounts to be deposited in the accounts in the following year.
Source: SL 1989, ch 306, § 13.
34A-6-1.13. Notice and opportunity for hearing--Issuance of permit--Contested cases--Grounds for denial.
The board or the secretary, after public notice and opportunity for public hearing, may issue a permit with reasonable terms and conditions for installation, establishment, modification, operation, or abandonment of a solid waste facility. After publication of the secretary's recommendation on a permit application as provided for under § 34A-6-1.14, if no petition for contested case is timely filed, the recommendation of the secretary becomes the final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with the secretary's recommendation. The board may issue a permit in a contested case on the basis of information in the application itself or on the basis of evidence received at a hearing, if any, on the matter only if the board finds that the facility will meet the requirements of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and is in the public interest.
The board may deny any permit in a contested case if it finds that the applicant, or any officer, director, or manager of the applicant, or shareholder owning twenty percent or more of its capital stock, beneficial or otherwise, or other person conducting or managing the affairs of the applicant or of the proposed permitted premises in whole or part:
(1) Has misrepresented a material fact in applying to the board for a permit;
(2) Has been convicted of a felony or other crime involving moral turpitude;
(3) Has violated the environmental laws of any state or the United States;
(4) Has had any permit revoked under the environmental laws of any state or the United States; or
(5) Has otherwise demonstrated through previous actions the lack of character or competency to reliably carry out the obligations imposed by §§ 34A-6-1.1 to 34A-6-1.38, inclusive.
For the purpose of this section, the conduct and reputation of any owner or proposed manager or operator may be imputed to the applicant.
Source: SL 1989, ch 306, § 14; SL 1991, ch 288, § 6; SL 2011, ch 165, § 111.
34A-6-1.14. Promulgation of rules specifying procedure for permit issuance, amendment, suspension, revocation, and reinstatement--Recommendation of secretary--Notice and hearing.
The board shall promulgate rules pursuant to chapter 1-26 to specify the procedure for permit issuance, amendment, suspension, revocation, and reinstatement. The rules shall address application form and contents; application completeness review; departmental investigation and evaluation of applications; the form, content, and method and timing of publication or other service of the notice of application and departmental recommendation; intervention by interested parties; scheduling and conduct of hearings; prehearing discovery; continuances; and other matters as necessary to effectuate the permitting process. The secretary may recommend approval, denial, or approval with such terms, conditions, or modifications as the secretary deems necessary to comply with §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and to protect the public interest. A notice of application and the recommendation of the secretary shall be published in at least one official newspaper of the county in which the facility is located. A hearing may be held only if a petition requesting a hearing is filed by the secretary, any member of the board, the applicant, or an interested person within thirty days after the publication of the notice and recommendation. If a petition for hearing is not timely filed, the recommendation of the secretary becomes the final decision on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with the secretary's recommendation.
Source: SL 1989, ch 306, § 15; SL 1991, ch 288, § 7; SL 2011, ch 165, § 112.
34A-6-1.15. Amendment of permit--Procedure--Grounds.
The procedure to amend a permit may be initiated by an application filed by the owner of the facility or by a petition filed by the department or a member of the board specifying the requested modification and the reasons for it. A request for amendment shall be granted if it is demonstrated that the change is necessary to meet the requirements established by §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and is in the public interest or, in the case of a request by the permit holder, that the change will meet the requirements of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and is in the public interest.
Source: SL 1989, ch 306, § 16.
34A-6-1.16. Initial validity period of permits--Renewal--Assessment of fees.
Permits granted by the board under this chapter shall be initially valid for up to two years from the date of issuance and may be renewed for periods of up to five years.
The department shall assess for the processing of all permits, amendments and renewals an application fee. The fee shall be assessed as follows:
(1) Facilities receiving wastes of more than 150,000 tons per annum: ................................................................. $ 5,000
(2) Facilities receiving between 5,000 tons and 150,000 tons per annum: .................................................................... $ 500
(3) Facilities receiving between 500 tons and 4,999 tons per annum: .................................................................. $ 250
Source: SL 1989, ch 306, § 17; SL 1993, ch 257, § 6.
34A-6-1.17. Additional fee imposed upon disposal of certain solid waste.
Because of the additional environmental risks attending large-scale solid waste disposal facilities, a solid waste disposal fee of three dollars per ton or part thereof is hereby levied and imposed upon the disposal of solid waste, other than mine wastes, at any solid waste disposal facility in this state, permitted for more than two hundred fifty thousand tons of solid waste per annum. The fee imposed by this section is in addition to all other fees and taxes levied by law and must be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility. Neither this fee nor any fees authorized by § 34A-6-1.38 may be imposed upon the disposal of waste by the state. In the case of any solid waste disposal facility that receives solid waste only from entities that have implemented a solid waste source reduction and recycling program, the fees provided for in this section are required if the facility receives more than two hundred fifty thousand tons of solid waste per year. Solid waste disposal facilities owned or operated by political subdivisions are exempt from this section.
The owner of the solid waste disposal facility shall pay the disposal fee. The obligation of the owner to pay the fee accrues at the time solid waste is disposed of at a solid waste facility. The fee imposed by this section is due and payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued, together with a return on such form or forms as may be prescribed by the secretary of revenue. Each owner of a facility who is required to pay the fee imposed by this section shall keep complete and accurate records in such form as the board or the secretary of revenue, by rule promulgated pursuant to chapter 1-26, may require.
Fees collected under this section must be deposited in the South Dakota environment and water resources trust fund established pursuant to § 46A-1-82.
Source: SL 1989, ch 306, § 18; SL 1992, ch 256; SL 2022, ch 138, § 1.
34A-6-1.18. Sections not applicable.
Sections 34A-6-1.7, 34A-6-1.9, and 34A-6-1.17 do not apply to existing facilities or to any new facility which handles less than twenty-five thousand tons per annum, unless required by federal law or regulation or unless the department can affirmatively demonstrate in a specific case that groundwater contamination is actually occurring.
Source: SL 1989, ch 306, § 18A; SL 1994, ch 282.
34A-6-1.19. Requirements relating to board's inability to inspect out-of-state solid waste at point of origin--Maintenance and filing of certain records.
Because of the inability of the department to inspect out-of-state solid waste at the point of origin, the board may require: (1) that any person disposing of solid waste originating from outside this state file with the operator of the solid waste facility records concerning the type, amount, and origin of solid waste disposed of by him; and (2) that any owner of solid waste facilities receiving waste from outside this state maintain records and file them with the department concerning the type, amount, and origin of solid waste accepted by him.
Source: SL 1989, ch 306, § 19.
34A-6-1.20. Periodic inspections--On-site investigations.
The secretary shall make periodic inspections at every permitted solid waste facility to effectively implement and enforce the requirements of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and may, in coordination with the secretary of the Department of Transportation, conduct at weigh stations or any other adequate site or facility inspections of solid waste in transit.
In addition, the secretary may at reasonable times, enter onto any solid waste facility, open dump or property where solid waste is present for the purpose of investigating any potential violation of §§ 34A-6-1.1 to 34A-6-1.38, inclusive.
In conducting these investigations the department may take samples of the waste, soils, air, or water or may, upon issuance of an order, require any person to take and analyze samples of such waste, soil, air, or water. The secretary may also perform or require a person, by order, to perform any and all acts necessary to carry out the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive.
Source: SL 1989, ch 306, § 20.
34A-6-1.21. Suspension or revocation of permit--Grounds--Notice and hearing.
A permit may be suspended or revoked if its terms or conditions or the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, are violated. The secretary may initiate the process to suspend or revoke by serving a notice and order of suspension or revocation on the permit holder. The notice shall be published in one official newspaper of the county in which the facility is located. If the permit holder or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be served on the permit holder and any interested person who has filed a petition for intervention in the matter within the twenty-day period.
Source: SL 1989, ch 306, § 21.
34A-6-1.22. Notice of violation--Contents.
If the secretary has reason to believe that a violation of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, has occurred, the secretary shall cause written notice to be served personally or by mail upon the alleged violator or the alleged violator's agent. The notice shall state the provision alleged to be violated, the facts alleged to constitute a violation, the nature of any corrective action proposed to be required, and the time within which such action is to be taken. For the purpose of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, service by mail is deemed complete on the date of mailing.
Source: SL 1989, ch 306, § 22; SL 2011, ch 165, § 113.
34A-6-1.23. Secretary may require appearance for public hearing--Alternative procedures.
In a notice given under § 34A-6-1.22, the secretary may also require the alleged violator to appear for a public hearing to be conducted before the board, and to answer the charges made against the alleged violator. If the secretary does not require an alleged violator to appear for a public hearing pursuant to this section, the alleged violator, a member of the board, or an interested person may request the board to conduct such a hearing. Such request shall be in writing and shall be filed with the board no later than ten days after service of a notice under § 34A-6-1.22. If such a request is filed, a hearing shall be held as soon as practicable. In such event, notice of hearing shall be provided which meets the requirements of § 1-26-17, and notice shall also be given in a manner which will reasonably inform the public.
Source: SL 1989, ch 306, § 23; SL 2011, ch 165, § 114.
34A-6-1.24. Decision by board--Scope and content of order.
After a hearing, or on the failure of an alleged violator to make a timely request for a hearing, the board may issue an appropriate decision in compliance with § 1-26-25 and an order to prevent, abate, restrain, or control acts in violation of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, or to protect the public interest. The order shall state the date or dates by which any violation shall cease and may prescribe timetables for obtaining compliance and for necessary action in preventing, abating, or controlling the pollution.
Source: SL 1989, ch 306, § 24.
34A-6-1.25. Effect of appeal upon order.
Notwithstanding the provisions of § 1-26-32, an appeal may not stay the effectiveness of any order of the board, unless the court finds that there is probable cause to believe that refusal to grant a stay will cause more serious harm to the affected party than granting it will cause to the environment, the public health, or the public interest.
Source: SL 1989, ch 306, § 25.
34A-6-1.26. Issuance of emergency order--Purpose--Noncompliance.
The secretary may issue an emergency order compelling any person who is committing an act or failing to take action, or threatening either, which violates §§ 34A-6-1.1 to 34A-6-1.38, inclusive, and which will cause substantial pollution, the harmful effects of which cannot be remedied immediately after the commission or cessation of the act to stop, avoid, moderate, or perform the act so that it is in compliance with §§ 34A-6-1.1 to 34A-6-1.38, inclusive, or so that the substantial injury will not occur. The order is effective immediately upon receipt by the person to whom it is directed, unless the secretary provides otherwise. If the order is not complied with in a timely manner, the secretary may take such action as is necessary to contain and recover pollutants to limit or prevent pollution or injury to public health or welfare.
Source: SL 1989, ch 306, § 26.
34A-6-1.27. Hearing upon emergency order--Time and place--Procedure.
Upon issuing an order pursuant to § 34A-6-1.26, the secretary shall fix a place and time for a hearing before the board, not later than five days after the order is issued, unless the person to whom the order is directed requests a later time. The secretary may deny a request for a later time if the secretary finds that the person to whom the order is directed is not complying with the order. The hearing shall be conducted by the board in compliance with chapter 1-26 and rules promulgated by the board pursuant to chapter 1-26.
Source: SL 1989, ch 306, § 27; SL 1993, ch 256, § 29; SL 2011, ch 165, § 115.
34A-6-1.28. Suit by secretary on behalf of state.
In the alternative or at any point where the secretary determines that the emergency administrative order is not achieving the necessary action and the legal process should be invoked, and upon receipt of evidence that a solid waste or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment to welfare is to the livelihood of such persons, or that a person is violating or threatening to violate any of the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive, the secretary may bring suit on behalf of the state in the circuit court in which the violation is taking place to immediately restrain, or order action by, any person violating or threatening to violate §§ 34A-6-1.1 to 34A-6-1.38, inclusive, or causing or contributing to alleged pollution as a result of solid waste facility operations, or to take such other action as may be necessary.
Source: SL 1989, ch 306, § 28.
34A-6-1.29. Department may seek to enjoin threatened or actual violation--Bond unnecessary--Temporary relief available.
The department may bring an action without furnishing of bond, for an injunction against the continuation of any threatened or actual violation, or against any person who fails to comply with an emergency order issued by the secretary by virtue of § 34A-6-1.26, or any final order of the secretary or board. The court to which the department applies for an injunction may issue a temporary injunction, if it finds that 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, § 29.
34A-6-1.31. Operation of facility without or in violation of permit--Penalties--Civil penalty.
Any person who knowingly and intentionally operates a solid waste facility without a permit is guilty of a Class 5 felony. Any person who knowingly and intentionally violates a permit term or condition or who intentionally makes any false statement or representation in any application, record, report, permit, or other document filed, maintained, or used for ensuring compliance with §§ 34A-6-1.1 to 34A-6-1.38, inclusive, is guilty of a Class 1 misdemeanor. The violator is also subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than ten thousand dollars per day per violation, for damages to compensate the state for impairment of the environment of this state, or both. An action for the recovery of a civil penalty or compensatory damages shall, upon demand, be tried by a jury.
Source: SL 1989, ch 306, § 31; SL 1992, ch 158, § 41; SL 1992, ch 254, § 50P.
34A-6-1.33. Exhaustion of administrative remedies not required.
The department need not exhaust its administrative remedies, if any exist, before commencing any action to enforce the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive.
Source: SL 1989, ch 306, § 33.
34A-6-1.34. Enforcement of rules by board through permit procedures--Department as designated agency for purposes of federal laws.
The board may enforce through its permit procedures those rules promulgated by the secretary pursuant to chapter 34-21 that pertain to the land disposal of radioactive substances. The department is designated the agency for all state purposes of the Federal Solid Waste Disposal Act (Public Law 89-272) as amended to January 1, 2011, and the Hazardous and Solid Waste Amendments of 1984 (Public Law 98-616) as amended to January 1, 2011.
Source: SL 1989, ch 306, § 34; SL 2011, ch 165, § 116.
34A-6-1.35. Functions of department--Delegation of duties and authority--Power to accept and administer grants and loans.
The department shall perform all the functions with respect to the control of solid waste disposal as provided for by §§ 34A-6-1.1 to 34A-6-1.38, inclusive, except that the Board of Minerals and Environment shall perform any quasi-legislative, quasi-judicial, advisory, and special budgetary functions as defined in § 1-32-1. The secretary may delegate to officers and employees of the department such functions, duties, and authority as are reasonable and proper in carrying out the provisions of §§ 34A-6-1.1 to 34A-6-1.38, inclusive.
The department may advise, consult, and cooperate with other agencies and instrumentalities of the state, other states, and the federal government and with affected groups and industries in the formulation of plans and the implementation of solid waste disposal programs.
In addition to any other powers conferred on it by law, the department may accept and administer such loans and grants from the federal government and from other sources as may be available to the department for the planning, construction, and operation of solid waste disposal sites and facilities.
Source: SL 1989, ch 306, § 35.
34A-6-1.38. County or municipal imposition and levy of disposal fee--Payment and collection--Distribution of shares.
In addition to the solid waste disposal fee assessed by the state under § 34A-6-1.17 and by a political subdivision under § 34A-6-29, a county or municipality may impose and levy a solid waste disposal fee upon the disposal of solid waste at a solid waste facility within, or operated under, its jurisdiction. Fees imposed under this section are in addition to all other fees and taxes levied by law.
The fee imposed in this section shall be paid by the owner of the solid waste disposal facility and remitted to the county or municipal treasurer. The obligation to pay the fee accrues at the time the solid waste is disposed of at the solid waste facility. The owner of the facility may collect these fees from persons disposing of solid waste at the facility. The fee imposed by this section is due and payable by the owner on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on a form prescribed by the county or municipal treasurer. Each person required to pay the fee imposed by this section shall keep complete and accurate records in a form required by the county or municipal treasurer.
The county or municipality may distribute shares of this fee to municipalities and school districts within its boundary as it deems appropriate considering the location of the facility and the impacts on the representation jurisdiction.
Source: SL 1989, ch 306, § 38; SL 1992, ch 60, § 2; SL 2011, ch 165, § 117.
34A-6-1.40. Removal of improperly disposed solid waste--Alternative means of disposal.
Any person convicted of a violation of § 34A-6-1.4 shall, in addition to any other penalty, remove the solid waste from where it was improperly disposed and shall dispose of such solid waste in a manner consistent with this chapter. However, the court may provide for an alternative means of disposal if such disposal is consistent with the provisions of this chapter.
Source: SL 1992, ch 257.
34A-6-17. Plans for county systems--Submission to state board.
The board of county commissioners in each county of the state shall plan, initiate, and provide a solid waste management system to adequately handle solid wastes generated or existing within the boundaries of the county. The plan shall be submitted to the Board of Minerals and Environment for approval on a specified date.
Source: SL 1972, ch 198, § 13; SDCL, § 34-16B-17; SL 1986, ch 295, § 24.
34A-6-18. County grant of franchises--Approval by voters--Maximum period.
Any county may grant and regulate franchises for the purpose of collection and disposal of solid waste, as solid waste is defined by subdivision 34A-6-1.3(17), in those parts of the county not subject to the jurisdiction of a municipality. Such franchises may be granted for a part of the county. No franchise is valid unless approved in an election by a majority of the electors voting on the question. Such election shall be held in that part of the county affected by the franchise. Such franchise may not be granted for a longer period than ten years.
Source: SL 1974, ch 244, § 2; SDCL Supp, § 34-16B-17.1; SL 1977, ch 280, § 23; SL 1987, ch 29, § 19; SL 1989, ch 306; SL 1991, ch 24, § 9.
34A-6-19. Municipal procedure applied to counties--General election laws apply.
The procedure prescribed for municipalities in § 34A-6-25 shall also apply to counties when granting franchises pursuant to § 34A-6-18. The governing body of the county shall substantially follow the procedure that a municipality would use in the granting of a franchise, where applicable, and the general election laws shall apply to county franchise elections where applicable.
Source: SL 1975, ch 226, § 2; SDCL Supp, § 34-16B-17.2; SL 1977, ch 280, § 24.
34A-6-20. County agreements with other political subdivisions and persons.
The board of county commissioners of a county may enter into agreements with other counties, one or more municipalities, townships, governmental agencies, with private persons, trusts, or with any combination thereof to provide a solid waste management system for all participating counties, an individual county, or any portion thereof.
Source: SL 1972, ch 198, § 13; SDCL, § 34-16B-18.
34A-6-21. County assumption of responsibility for wastes within municipalities.
By agreement or contractual arrangement the board of county commissioners may assume responsibility for solid wastes generated within municipalities whether within the county or other counties.
Source: SL 1972, ch 198, § 13; SDCL, § 34-16B-19.
34A-6-22. Sanitary districts and counties to have municipal rights and responsibilities.
All sanitary districts and counties shall have the same rights and responsibilities under this chapter as municipalities.
Source: SL 1972, ch 198, § 12; SDCL, § 34-16B-20.
34A-6-24. Municipal grant of franchises--Maximum period.
Any municipality may grant and regulate franchises for the purpose of collection and disposal of solid waste, as defined in subdivision 34A-6-1.3(17), if the solid waste originates in the municipality or in a zone adjacent to the municipality that is not a part of another municipality, and does not exceed two miles around the boundaries of the municipality. The franchise may not be granted for a longer period than ten years.
Source: SL 1974, ch 244, § 1; SDCL Supp, § 34-16B-21.1; SL 1977, ch 280, § 25; SL 1987, ch 29, § 20; SL 1991, ch 24, § 10; SL 2011, ch 165, § 118.
34A-6-25. Vote required for municipal grant of franchise--General or special election--Adoption of ordinance before vote--Notice of election.
No franchise may be granted by any municipality pursuant to § 34A-6-24 unless the governing body of the municipality submits the proposition of issuing the franchise to a vote of the electors at a general or special election called for that purpose. Before submitting the proposition, the governing body shall first approve the proposed franchise by ordinance, incorporating the proposed franchise in full and providing for submission of the proposition at an election to be held not sooner than thirty days after the publication of the election and proposition. The notice of election and the proposition shall refer to the ordinance by number and shall include the full title of the ordinance. No such franchise or franchise ordinance is effective unless the proposal to grant the franchise is approved at the election by a majority vote of the electors.
Source: SL 1975, ch 226, § 1; SDCL Supp, § 34-16B-21.2; SL 2011, ch 165, § 119.
34A-6-26. Municipal agreements with other political subdivisions and persons--Maximum duration.
The governing body of the municipality may enter into agreements with a county or counties, with one or more other municipalities, with a regional recycling and waste management district created pursuant to chapter 34A-16, with Indian tribes, with private persons, corporations, trusts, or with any combination thereof, to provide or operate a solid waste collection or disposal system or disposal site for a solid waste management system for the municipality. Any such contract may not exceed thirty-five years in duration.
Source: SL 1972, ch 198, § 7; SDCL, § 34-16B-22; SL 1977, ch 280, § 26; SL 1993, ch 259, § 48; SL 1994, ch 283.
34A-6-27. City-county combinations to grant franchises--Approval by voters--Approval or rejection by subdivisions.
Municipalities and counties may combine to grant and regulate franchises for the purposes outlined in §§ 34A-6-18 and 34A-6-24. Franchises granted under this section must be approved by the electors in the same manner as provided by § 34A-6-18. In case the electors of any political subdivision cooperating under this section reject the franchise, the franchise shall be granted for those subdivisions approving it.
Source: SL 1974, ch 244, § 3; SDCL Supp, § 34-16B-22.1; SL 1977, ch 280, § 27.
34A-6-28. Municipal procedure applied to combined city-county grants of franchises--General election laws apply--One election.
The procedure prescribed in § 34A-6-25 shall apply to franchises granted by combinations of municipalities and counties pursuant to § 34A-6-27, and the general election laws shall be substantially followed. A county and municipality adopting a franchise ordinance under this section may each adopt a separate ordinance or the same ordinance but in each instance, only one election shall be held, and it shall be held throughout the area affected by the proposed ordinance.
Source: SL 1975, ch 226, § 3; SDCL Supp, § 34-16B-22.2; SL 1977, ch 280, § 28.
34A-6-29. Subdivision fees, charges, and license requirements--Collection of delinquent charges.
The governing body of a municipality, county, or subdivision may levy and collect fees and charges and require licenses as are necessary to discharge their responsibility. The fees, charges, and licenses shall be based on a fee schedule set forth in an ordinance or resolution. If any fee, charge, or license so levied, other than a municipal garbage collection fee, becomes delinquent, the delinquency may be certified to the county treasurer and shall be collected by the county treasurer in the following year as a condition precedent to payment of the real property tax on the lot or parcel of land with respect to which the fee, charge, or license was levied. The chief fiscal officer of a municipality shall collect a delinquent municipal garbage collection fee as a condition precedent to the payment of any water, sewer, utility, or other charge collected by the municipality.
Source: SL 1972, ch 198, § 8; SDCL § 34-16B-23; SL 1975, ch 218, § 1; SL 1977, ch 282; SL 2011, ch 165, § 120.
34A-6-37. Acceptance and disbursement of funds for solid waste or recycling facility or system.
Any county, municipality, or other political subdivision of the state that is authorized to own or operate a solid waste or recycling facility or system may accept and disburse funds derived from grants from the federal or state governments, from private sources, from moneys that may be appropriated from the general fund, or a combination thereof for the installation and operation of a solid waste management system or facility, recycling facility, or any portion of such a system or facility. In addition, the county, municipality, or political subdivision may accept and disburse funds that are derived from or used for transactions authorized under § 34A-6-63.1. Such transactions are exempt from the provisions of §§ 7-8-15, 7-11-6, 7-18-3, 7-22-1, 7-22-2, 7-22-3, 9-18-1, 9-23-1, 9-23-2, and 9-23-3.
Source: SL 1972, ch 198, § 9; SDCL § 34-16B-24; SL 2007, ch 204, § 3.
34A-6-38. Municipal acquisition of property--Maximum duration of contract--Shares of parties to regional or county solid waste authority.
Municipalities are authorized to acquire by gift, devise, lease, purchase, or eminent domain real or personal property necessary to the installation and operation of a solid waste management system either individually or as a party to a regional or county solid waste authority. A contract for the purchase or lease of such property by a municipality may be for a term not to exceed twenty years. If contracted as a party to a regional or county solid waste authority, each member's share shall be fixed at the time of purchase with provisions for a division of proceeds upon termination of the region or the withdrawal from regional participation.
Source: SL 1972, ch 198, § 10; SDCL, § 34-16B-25; SL 1977, ch 280, § 30.
34A-6-39. Appropriations for long-term contracts.
If the term of any contract entered into pursuant to § 34A-6-26 or 34A-6-38 extends for more than one year, an appropriation need not have been previously made concerning such expense except sufficient to cover the amount payable or estimated to become payable under such contract for the first year thereof. The governing body shall annually thereafter appropriate sufficient money to cover the amount payable or estimated to become payable under such contract during the ensuing fiscal year.
Source: SL 1977, ch 280, § 31.
34A-6-40. Policies and requirements for operation of system.
The governing body of any county, municipality, or other political subdivision of the state may, by ordinance or resolution, establish policies and requirements governing the operation of any solid waste management facility or system or any recycling facility owned or operated by the county, municipality, or political subdivision. The policies and requirements may include operating procedures, procedures to protect the safety of operating personnel, hours of operation, and character and kind of wastes accepted by such facilities. Policies and requirements established pursuant to this section shall conform to state statutes and rules related to solid waste and recycling.
Source: SL 1972, ch 198, § 11; SDCL § 34-16B-26; SL 1993, ch 256, § 30; SL 2007, ch 204, § 4.
34A-6-41. Local standards for sites and facilities.
Any local governing body in accordance with existing statutory authority, may by ordinance or resolution adopt standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities more restrictive than those adopted by the State Department of Agriculture and Natural Resources under the provisions of this chapter.
Source: SL 1972, ch 198, § 5; SDCL, § 34-16B-27; SL 1977, ch 280, § 32; SL 1986, ch 295, § 27; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-6-53. Legislative approval required for large-scale solid waste facilities--Requirements--Exception.
No large-scale solid waste facility may be sited, constructed, or operated in this state unless the Legislature enacts a bill approving the siting, construction, or operation of the facility pursuant to a solid waste permit or permit renewals, issued by the Board of Minerals and Environment. The Legislature must find that the facility is environmentally safe and in the public interest. The requirements of this section do not apply to the land application for irrigation purposes of solid waste generated from a livestock processing facility if the application is done in accordance with a solid waste permit or permit renewal issued by the board.
Source: SL 1991, ch 453 (I.M. 1); SL 2008, ch 177, § 1.
34A-6-54. Definition of large-scale solid waste facility.
A large-scale solid waste facility is any single facility, or two or more facilities operated as a single unit, in which over two hundred thousand tons of solid waste is disposed or incinerated per year.
Source: SL 1991, ch 453 (I.M. 1).
34A-6-55. Existing facilities to cease until legislative approval is obtained.
The Board of Minerals and Environment shall cause any existing large-scale solid waste facility to cease operation unless legislative approval as prescribed in § 34A-6-53 has been obtained.
Source: SL 1991, ch 453 (I.M. 1); SL 2011, ch 165, § 122.
34A-6-56. Approval requirements are retroactive.
The provisions of §§ 34A-6-53 to 34A-6-56, inclusive, are retroactive to July 1, 1989.
Source: SL 1991, ch 453 (I.M. 1).
34A-6-58. General permit for category of solid waste treatment, storage or disposal--Terms and conditions--Suspension, revocation or modification.
Upon the recommendation of the secretary and after public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the board may issue a general permit for a category of solid waste treatment, storage, or disposal. A general permit issued by the board may be subject to such terms and conditions for installation, establishment, modification, operation, or abandonment of a category of solid waste treatment, storage, or disposal as the board finds reasonably necessary to adequately protect the public health, safety, welfare, and the environment of this state. Waste treatment, storage, or disposal activities conducted in conformity with a general permit do not require a permit issued under § 34A-6-1.13.
A general permit shall remain in effect until suspended, revoked, or modified by the board. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the board, and upon action by the board in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit.
Source: SL 1991, ch 288, § 4.
34A-6-59. Legislative findings.
The Legislature finds that the implementation of federal regulations under subtitle D of the Resource Conservation and Recovery Act, P.L. 94-580, as amended to January 1, 2011, will reduce the available landfill capacity in the state for the disposal of municipal solid waste. The Legislature further finds:
(1) That maximum solid waste source reduction, reuse, recycling, and composting are preferable to land disposal, are the most economically sound and environmentally safe methods of solid waste management and are in the best interest of the state in order to protect public health and the environment and to conserve resources, energy, and tax dollars; and
(2) That education, research, development, and innovation in the design, management, and operation of source reduction, reuse, recycling, and composting are essential in reducing operating costs and providing incentives for the use of these systems and operations and their products.
Source: SL 1992, ch 254, § 21; SL 2011, ch 165, § 123.
34A-6-60. Legislative intent to reduce amount of solid waste disposed in landfills.
The Legislature intends by §§ 34A-6-59 to 34A-6-92, inclusive, to establish programs and regulations that reduce the waste stream disposed of in landfills in this state and thus protect the public health, safety, and welfare of all South Dakotans, protect the environment, and return resources back to industry for reuse. The goal of the state is to reduce the amount of materials in the waste stream being landfilled. The amount of materials being landfilled shall be reduced using appropriate methods and technology through the practice of solid waste reduction, waste diversion, reuse, recycling, composting, and waste-to-energy. The goal of the state is to reduce the waste stream disposed in landfills by fifty percent by July 1, 2001. For the purposes of this section, the term, waste stream, means the disposal of solid waste as defined in § 34A-6-1.3.
The base year for establishing the amount of materials in the waste stream is the calendar year 1990. Total tonnage of solid waste landfilled in the calendar year 1990 is the basis for all waste reduction calculations. In the absence of scale data and cubic yardage data of waste materials landfilled, the base tonnage is calculated as eight-tenths of a ton per year per person, in residence, serviced by the landfill. Tonnage may be estimated by equating one cubic yard of solid waste received at the landfill gate to seven hundred pounds of solid waste. In determining the reduction level of the waste stream, it is assumed that each person in 1990 generated eight-tenths of a ton per year of municipal solid waste.
Any landfill that conducted waste reduction or recycling programs before the 1990 base calendar year and increased its ability to reduce waste stream volume may receive credit for prior recycled tonnage in the solid waste source reduction and recycling plan required by § 34A-6-74. Similarly, any landfill that has experienced or will experience a growth in its population served may submit justification for increased tonnage, even after waste reduction or recycling programs have been implemented.
Source: SL 1992, ch 254, § 22; SL 1998, ch 203, § 1.
34A-6-61. Definitions.
Terms used in §§ 34A-6-59 to 34A-6-92, inclusive, mean:
(1) "Agency" or "state agency," each association, authority, board, commission, committee, council, department, division, office, officer, task force, or other agent of the state vested with the authority to exercise any portion of the state's sovereignty, including the legislative and judicial branches of the government of the state, but not including local units of government such as counties, townships, municipalities, chartered governmental units, school or other special districts, or Indian tribes;
(2) “Auxiliary container,” any bag, can, cup, bottle, package, pouch, container, or other packaging, whether designed to be reusable or single-use, that is made of cloth, paper, plastic, including foamed or expanded plastic, cardboard, corrugated material, aluminum, glass, postconsumer recycled material, or similar material or substrates, including coated, laminated, or multi-layer substrates, and that is designed for consuming, transporting, or protecting merchandise, food, or beverages from or at a food service facility or retail facility;
(3) "Department," the Department of Agriculture and Natural Resources;
(4) "Local unit of government," a county, municipality, school district, special district or other political subdivision of the State of South Dakota or a similar unit of government of another state or nation;
(5) "Major appliance," a major residential or commercial appliance, including any air conditioner, clothes dryer, clothes washer, dishwasher, freezer, kitchen range, microwave oven, refrigerator, television, or water heater;
(6) "Motor vehicle," a motor vehicle as defined in § 32-3-1;
(7) "Municipality," a municipality as defined in § 9-1-1;
(8) "Paper and paper products," paper items including paper napkins, towels, corrugated and other cardboard, toilet tissue, high-grade office paper, newsprint, offset paper, bond paper, xerographic bond paper, mimeo paper, and duplicator paper;
(9) "Plastic," any material made of polymeric organic compounds and additives that can be shaped by flow;
(10) "Plastic bottle," a plastic container having a neck that is smaller than the body of the container, accepts a screw-type, snap cap, or other closure, and has a capacity of sixteen fluid ounces or more, but less than five gallons;
(11) "Plastic product label," a molded imprint or raised symbol on or near the bottom of a plastic product;
(12) "Postconsumer material," products generated by a business or consumer that have served their intended end uses and that have been separated or diverted from solid waste for the purpose of collection, recycling, and disposition;
(13) "Recovered material," material which is recovered or derived from solid waste;
(14) "Recovered paper material," paper waste generated after the completion of the papermaking process, such as postconsumer material, envelope cuttings, bindery trimmings, printing waste, cutting and other converting waste, butt rolls and mill wrappers, obsolete inventories, and rejected unused stock. The term does not include fibrous waste generated during the manufacturing process such as fibers recovered from waste, water, or trimmings of paper machine rolls; or fibrous by-products of harvesting, extractive, or woodcutting processes; or forest residue such as bark;
(15) "Recyclable materials," materials that are separated from solid waste for the purpose of recycling, including paper, glass, plastics, metals, motor oil, tires, and batteries;
(16) "Recycled," the quality of being manufactured from or consisting of, in whole or part, materials derived from solid waste;
(17) "Recycled paper," a paper product with not less than forty percent of its total weight consisting of postconsumer material and recovered paper material and at least ten percent of the total weight of recycled paper is of postconsumer materials;
(18) "Recycling," any process by which waste, or materials that would otherwise become waste, are collected, separated, or processed and revised or returned to use in the form of raw materials or products. The term includes the composting of yard waste which has been previously separated from other waste, but does not include any form of energy recovery;
(19) "Rigid plastic containers," any formed or molded container, other than a bottle, intended for single use, composed predominantly of plastic resin, and having a relatively inflexible shape or form with a capacity of eight ounces or more, but less than five gallons;
(20) "Sanitary landfill," a solid waste disposal facility in which solid waste is buried between layers of earth;
(21) "Secretary," secretary of the Department of Agriculture and Natural Resources;
(22) "Solid waste," solid waste as defined in § 34A-6-1.3;
(23) "Solid waste disposal facility," a solid waste disposal facility as defined in § 34A-6-1.3;
(24) "Source reduction," practices that reduce, avoid, or eliminate both the generation of solid waste and the use of toxic materials so as to reduce risks to health and the environment and to avoid, reduce, or eliminate the generation of wastes or environmental pollution at the source and not merely achieved by shifting a waste output or waste stream from one environmental medium to another environmental medium;
(25) "Universal recycling symbol," an equilateral triangle formed by three arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short radius. The arrowhead of each arrow shall be at the midpoint of each side of the triangle with a short gap separating the pointer from the base of the adjacent arrow. The triangle, formed by the three arrows curved at their midpoints, shall depict a clockwise path;
(26) "Waste oil," any oil after use that is contaminated through storage or handling before the oil is recycled;
(27) "Waste tire," a tire that is no longer suitable for its original purpose because of wear, damage, or defect;
(28) "Waste tire collection site," a site used for the storage, collection, or deposit of waste tires;
(29) "Waste tire collector," a person who owns or operates a site used for the storage, collection, or deposit of more than fifty waste tires;
(30) "Waste tire processing," producing or manufacturing usable materials from waste tires. The term does not include incineration of tires for fuel or energy recovery purposes;
(31) "Waste tire processing site," a site used for the processing of waste tires and owned or operated by a tire processor who has a permit for the site; and
(32) "Yard waste," leaves, grass clippings, and other similar waste vegetative material.
Source: SL 1992, ch 254, § 23; SL 1993, ch 261; SL 2020, ch 153, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-6-62. Waste reduction and recycling program established.
The department shall establish a statewide waste reduction and recycling program to promote the waste management policy contained in § 34A-6-59 and 34A-6-60 and the waste management hierarchy contained in § 34A-6-1.2. The program shall encourage waste generators to reduce the volume of waste generated and to recycle the waste that is generated. The program shall utilize financial and legal incentives, education, technical assistance, regulation, and other implementation methods. The program shall involve the development of public and private sector initiatives, the development of markets and other opportunities for waste reduction and recycling, and other related efforts.
Source: SL 1992, ch 254, § 24.
34A-6-63. Elements of waste reduction and recycling program.
The elements of the program required in § 34A-6-62 shall include promotion of:
(1) Efforts to increase the purchase and use of recycled products by government, business, and the public;
(2) Efforts to recover recyclable materials from the waste stream;
(3) Local efforts to implement recycling collection centers;
(4) Local efforts for curbside collection of separated recyclable waste materials and local efforts for drop-off sites or programs for rural areas;
(5) Public education programs that promote public awareness of waste volume reduction and the use of recyclable materials;
(6) Markets for recyclable materials;
(7) Research, manufacturing processes, and product development that provide for source reduction through use of alternative materials and through decreased material input and resource consumption; and
(8) Information-sharing and coordination of efforts among state governments in such areas as recycling education, technical assistance, market analysis, and related topics.
Source: SL 1992, ch 254, § 25.
34A-6-63.1. Policies and requirements for purchase, sale, or transfer of solid waste or by-products, recyclable materials, or scrap by local government facility or program.
The governing body of any county, municipality, or political subdivision of the state may, by ordinance or resolution, establish policies, requirements, and procedures for the purchase, acquisition, sale, or transfer of any solid waste, as defined in § 34A-6-1.3; solid waste by-products; recyclable materials, as defined in § 34A-6-61; and scrap materials by any solid waste or recycling system or facility that is owned or operated by the county, municipality, or political subdivision or by any other facility or program that is owned or operated by the county, municipality, or political subdivision. Policies and requirements established pursuant to this section shall conform to state statutes and rules related to solid waste and recycling.
Such purchases, acquisitions, sales, and transfers are exempt from the requirements of chapters 5-18A and 6-13. If the governing body determines that it is in the best interests of the county, municipality, or political subdivision, the governing body may attempt to identify additional prospective buyers or sellers and may negotiate the conditions of such transactions with prospective buyers or sellers, including price, delivery, transport, quantity, and length of contract, to obtain the price or conditions most advantageous to the governing body. The governing body may authorize procedures for adjusting prices to meet changing market conditions not within the control of the purchaser or seller. No governing board member and no officer of the county, municipality, or political subdivision may purchase or acquire the materials described in this section unless such materials are available for sale to or acquisition by the general public.
Source: SL 2007, ch 204, § 1; SL 2011, ch 2, § 141.
34A-6-64. Disposal of tires.
Disposal of tires at sanitary landfills in this state is prohibited beginning on July 1, 1995, unless the tire has been processed in the manner established in rule by the board.
Source: SL 1992, ch 254, § 26.
34A-6-66. Waste tire stockpiling and processing facilities—Promulgation of rules.
The department shall determine the number of stockpiling facilities that are necessary; and the board shall promulgate rules, pursuant to chapter 1-26, for waste tire stockpiling and processing facilities. The rules shall include the following:
(1) The prohibition of burning within one hundred yards of a tire stockpile;
(2) The maximum height, width, and length of a tire stockpile;
(3) Plans to control mosquitos and rodents;
(4) A facility closure plan;
(5) Specifications for fire lanes between stockpiles;
(6) Limitation of the total number of tires allowed at a single stockpile site;
(7) Criteria for the issuance of permits to qualified waste tire stockpiling and processing facilities. No waste tire stockpiling or processing may be done without a permit; and
(8) Appropriate waste tire processing methods.
Source: SL 1992, ch 254, § 28; SL 2021, ch 163, § 2.
34A-6-67. Landfill waste reduction targets--Implementation dates.
In order to achieve the waste reduction goals provided for under § 34A-6-60, no landfill in the state may accept yard waste, lead acid batteries, waste motor oil, or white good appliances for disposal.
Office and computer paper, old newspaper, magazines, telephone books, corrugated cardboard, other marketable paper products, containers made from plastic, aluminum, and steel, and other municipal solid waste materials that are diverted from landfilling using appropriate methods and technology count toward the waste reduction goal. Appropriate methods and technology includes recycling facilities.
Source: SL 1992, ch 254, § 30; SL 1995, ch 205; SL 1998, ch 203, § 2.
34A-6-68. Code required for rigid plastic bottle or rigid plastic container.
Beginning July 1, 1995, no person may distribute, sell, or offer for sale in this state any plastic bottle or rigid plastic container unless the product is labeled with a code indicating the plastic resin used to produce the bottle or container. Rigid plastic bottles or rigid plastic containers with labels and basecups of a different material shall be coded by their basic material. The code shall consist of a number placed within the universal recycling symbol and letters placed below the symbol. The number used shall be as follows:
(1) 1.-PETE (polyethylene terephthalate);
(2) 2.-HDPE (high density polyethylene);
(3) 3.-V (vinyl);
(4) 4.-LDPE (low density polyethylene);
(5) 5.-PP (polypropylene);
(6) 6.-PS (polystyrene);
(7) 7.-OTHER (includes multi-layer).
The Department of Agriculture and Natural Resources shall maintain a list of the label codes provided in this section and shall provide a copy of that list to any person upon request.
Source: SL 1992, ch 254, § 31; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2011, ch 1 (Ex. Ord. 11-1), § 154, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-6-69. Inspection of facilities.
The department may inspect, as provided in § 34A-6-1.20, any facility engaged in the transport, storage, or processing of materials for recycling, reuse, or other solid waste management purposes.
Source: SL 1992, ch 254, § 32.
34A-6-70. Solid waste evaluation.
Each county and first class municipality shall prepare or have prepared, on or before January 1, 1993, a solid waste evaluation coordinated with the state solid waste management plan. The evaluation shall cover a fifteen-year time period, shall serve as the basis for county and municipal decisions on the need for facilities, and shall be provided to the board for its consideration in determining whether to issue facility permits under § 34A-6-1.13. The evaluation shall include an analysis of the current and projected volume of solid waste, disposal capacity including all existing and planned facilities, the potential for source reduction, reuse, recycling, resource recovery, and shared and regional recycling and waste management facilities. The evaluation shall include a full accounting of the true and total cost, including the long-term costs, of all options analyzed in the evaluation. Counties and municipalities subject to this section shall consider in their solid waste evaluation, 40 CFR parts 257 and 258 of the environmental protection agency solid waste disposal criteria commonly known as "RCRA subtitle D regulations," as finally adopted and published in the Federal Register on October 9, 1991, and as amended to January 1, 2011; the statewide comprehensive solid waste management plan; and all rules promulgated by the board.
Source: SL 1992, ch 254, § 33; SL 2011, ch 165, § 124; SL 2021, ch 163, § 3.
34A-6-71. Regionalization of recycling and solid waste operations.
Regionalization of recycling and solid waste planning, management, operations, and disposal are encouraged whenever possible. Any two or more responsible units of government may prepare a single solid waste evaluation as provided in § 34A-6-70 for the analysis of the solid waste needs within the combined area of the responsible units of government as provided in the joint powers provisions of chapter 1-24. The department shall prepare model joint solid waste planning, management, recycling, operations, and disposal agreements and shall provide them to responsible units for the purpose of promoting regional planning and developing the regional recycling and waste management districts provided for under the statewide comprehensive solid waste management plan. Every regional landfill shall make provisions for municipalities and other political subdivisions responsible for solid waste management to exercise the powers provided for under § 34A-6-67. However, each regional landfill may establish special rates commensurate with additional costs incurred by the landfill for waste containing materials not excluded from the waste stream as provided for under § 34A-6-67.
Source: SL 1992, ch 254, § 34.
34A-6-73. Responsible units of governments--Evaluation of capacity.
Each county and first class municipality shall be the responsible unit of government for preparing the solid waste evaluation required under § 34A-6-70. The responsible unit shall evaluate capacity to meet the solid waste management needs of the unit for a period of at least fifteen years. Capacity shall be sufficient to meet the requirements of state law and all applicable requirements of the United States Environmental Protection Agency. The evaluation shall be submitted to the department on or before January 1, 1993, and shall provide details of a local recycling program which shall contain a methodology for meeting the state source reduction and recycling goal pursuant to § 34A-6-60 and a methodology for implementing a program of separation of wastes including yard waste, glass, plastic, paper, and metal.
Source: SL 1992, ch 254, § 36.
34A-6-74. Filing of solid waste source reduction and recycling plan--Department review and aid in development--Hearings--Updating of plans.
Every municipality or other political subdivision responsible for solid waste management shall file with the department by January 1, 1994, a comprehensive solid waste source reduction and recycling plan detailing the method by which the municipality or other political subdivision responsible for solid waste management will comply with the requirements of § 34A-6-67 to establish and implement a comprehensive solid waste source reduction and recycling program for its residents. For the purposes of this section, any public or private entity managing the solid waste stream for a municipality or county shall file one comprehensive plan on behalf of its members with the filing requirements of this section. The department shall review each comprehensive plan submitted and may reject, suggest modifications to, or approve the proposed plan. The department shall aid in the development of comprehensive plans for compliance with this section and shall make available appropriate forms for the submission of comprehensive plans. The department may hold hearings for the purpose of implementing this section. The comprehensive plan required in this section shall be updated and submitted to the department for approval five years after its most recent approval. The department may, consistent with rules promulgated by the board pursuant to chapter 1-26, require the filing or updating of a plan at other times.
Source: SL 1992, ch 254, § 37.
34A-6-75. Plan required for issuance of new or renewed permit.
Beginning July 1, 1994, no new permit for a solid waste disposal facility may be issued and no existing permit reissued or renewed unless the permit applicant, in conjunction with all local units of government whose residents, businesses, or institutions generate solid waste to be stored or disposed of in the facility, has filed a plan as required in § 34A-6-74.
Source: SL 1992, ch 254, § 38.
34A-6-76. Documentation of beginning implementation of plan required for new or renewed permit.
Beginning July 1, 1997, no new permit for a solid waste disposal facility may be issued and no existing permit may be reissued or renewed unless the permit applicant, in conjunction with all local units of government whose residents, businesses, or institutions generate solid waste to be stored or disposed of in the facility, documents that steps are being taken to begin implementing the plan filed pursuant to § 34A-6-74.
Source: SL 1992, ch 254, § 39.
34A-6-77. Documentation of alternatives to landfills required for reissued or renewed permit.
Beginning July 1, 2000, no existing solid waste disposal permit may be reissued or renewed unless the permit applicant, in conjunction with all local units of government whose residents, businesses, or institutions generate solid waste to be stored or disposed of in the facility, documents that alternative methods of solid waste management other than use of a sanitary landfill have been implemented as set forth in the plan filed pursuant to § 34A-6-74.
Source: SL 1992, ch 254, § 40.
34A-6-78. Certification of landfill as necessary part of alternative solid waste management required for new permit.
Beginning July 1, 2000, no new solid waste disposal facility permit for a landfill may be issued unless the applicant, in conjunction with all local units of government whose residents, businesses, or institutions generate solid waste to be stored or disposed of in the facility, certifies that the landfill is needed as a part of an alternative solid waste management method.
Source: SL 1992, ch 254, § 41.
34A-6-79. Assistance to individuals, businesses, government with regard to solid waste management--Specifications.
The department shall provide assistance to individuals, groups, businesses, state agencies, and local units of government in all aspects of solid waste management consistent with §§ 34A-6-59 to 34A-6-92, inclusive. This assistance may be provided through programs established under § 34A-6-80 and shall include:
(1) Providing information on how to conduct a waste audit;
(2) Maintaining current estimates of the generation of components of solid waste by appropriate categories of businesses, industries, municipalities, and other governmental entities;
(3) Providing solid waste generators and handlers with information on how to manage solid waste consistent with §§ 34A-6-59 to 34A-6-92, inclusive;
(4) Identifying appropriate qualifications of recycling program coordinators and staff;
(5) Preparing sample recycling ordinances, procedural handbooks, and contracts;
(6) Identifying sources of information regarding the creation and operation of a municipal or county recycling program;
(7) Providing advice, upon the request of the municipality or county, on implementing the municipality's or county's solid waste management plan;
(8) Identifying prospective buyers and brokers of materials recovered from solid waste;
(9) Preparing suggestions for regional programs to market materials recovered from solid waste; and
(10) Identifying methods to successfully accommodate fluctuating markets for materials recovered from solid waste.
Source: SL 1992, ch 254, § 50E.
34A-6-80. Educational and training programs on solid waste management--Training program audiences.
The department shall collect, prepare, and disseminate information and conduct educational and training programs that assist in the implementation of §§ 34A-6-59 to 34A-6-92, inclusive, and other related solid waste management programs. The information and programs shall be designed to enhance municipal and county solid waste management programs and to inform the public of the relationship between an individual's consumption of goods and services, the generation of different types and quantities of solid waste and the implementation of the solid waste management priorities in this chapter and chapter 34A-6. The information and programs shall be prepared on a statewide basis for the following audiences:
(1) Municipal, county, and state officials and employees;
(2) Students and teachers;
(3) Private solid waste scrap brokers, dealers, and processors;
(4) Businesses that use or could use recycled materials or which produce or could produce products from recycled materials, and persons who support or serve these businesses; and
(5) The general public.
Source: SL 1992, ch 254, § 50F.
34A-6-81. Solid waste management disposal fee--Calculation.
There is hereby imposed a solid waste management fee of a one dollar per ton for all municipal solid waste disposed of at a landfill facility. The fee shall be imposed upon the generator as a surcharge by the operator of the landfill facility at the time of disposal. The fee shall be calculated based upon actual disposal weight or if actual weight is not available each person served by the facility shall be considered to generate eight-tenths of a ton per year. Facilities subject to the fee imposed by § 34A-6-1.17 are not subject to the fee imposed by this section.
Source: SL 1992, ch 254, § 50H; SL 1993, ch 257, § 4.
34A-6-82. Payment of disposal fee by landfill owner--Accrual of obligation--Date due--Records.
The solid waste management fee imposed by § 34A-6-81 shall be paid by the owner of the landfill facility and remitted to the state treasury. The obligation of the owner to pay the fee accrues at the time the solid waste is disposed of at the landfill facility. This fee shall be due and payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on such form or forms as may be prescribed by the secretary of revenue. Facilities without scales that determine their fees on the basis of population served as provided for under § 34A-6-81 may submit one annual report and fee for the period July first to June thirtieth, inclusive, the report and fee due and payable on or before July thirty-first of the current year. Each operator of a landfill facility who is required to pay this fee shall keep complete and accurate records in such form as the secretary of revenue, by rules promulgated pursuant to chapter 1-26, may require.
Source: SL 1992, ch 254, § 50I; SL 1993, ch 257, § 5.
34A-6-83. Tire solid waste management fee on motor vehicles--Collection.
There is hereby imposed a solid waste management fee of twenty-five cents per tire, not to exceed one dollar per vehicle on each motor vehicle registered and licensed in this state. Before any vehicle is registered as a commercial or noncommercial motor vehicle pursuant to chapter 32-5 or 32-9, the county treasurer shall collect the solid waste management fee; and before any vehicle is registered as a commercial motor vehicle pursuant to chapter 32-10, the secretary of revenue shall collect the solid waste management fee.
Source: SL 1992, ch 254, § 50J; SL 1993, ch 34, § 6.
34A-6-84. Payment of tire management fee by owner of motor vehicle--Date due--Exemption for United States and Indian tribe property.
The solid waste management fee imposed by § 34A-6-83 shall be paid by the owner to the county treasurer or secretary of revenue at the registration and licensing of the motor vehicle, and the fee shall be remitted to the state treasury by the county treasurer or secretary of revenue on the same day as other registration and licensing fees are due and payable. Motor vehicles which are the property of the United States or the Indian tribes are not subject to the fee imposed by § 34A-6-83.
Source: SL 1992, ch 254, § 50K.
34A-6-85. Deposit of fees in environment and natural resources fee fund and water and environment fund--Expenditures, grants, and loans from water and environment fund--Preferences.
Twenty-five percent of the fees received pursuant to §§ 34A-6-81 and 34A-6-82 shall be deposited in the environment and natural resources fee fund established in § 1-41-23 and shall be used to defray costs of administering the solid waste management program requirements of chapter 34A-6. All fees received pursuant to §§ 34A-6-83 and 34A-6-84 and seventy-five percent of the fees received pursuant to §§ 34A-6-81 and 34A-6-82 shall be deposited in the water and environment fund established in § 46A-1-60, and their expenditures shall be limited to the solid waste source reduction, recycling, and waste management program established in § 46A-1-83. Grants or loans from the water and environment fund shall be administered by the Board of Water and Natural Resources in accordance with the rules established for solid waste management grants or loans in § 46A-1-84. The board shall offer a grant or loan preference to recycling projects.
Source: SL 1992, ch 254, § 50L; SL 1996, ch 219, § 1; SL 2009, ch 13, § 2; SL 2016, ch 218, § 5, eff. Feb. 18, 2016; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
34A-6-85.1. Financial assistance for statewide cleanup of waste tires.
In addition to the financial assistance provided for under § 34A-6-85, the Board of Water and Natural Resources shall expend an amount not to exceed two hundred fifty thousand dollars in fiscal years 1997 and 1998 from the fees collected pursuant to § 34A-6-83 in order to help defray the costs of a statewide cleanup of waste tires. These funds shall be used to clean up waste tires and waste tire piles that existed prior to July 1, 1998, until such time that the cleanup of those waste tires is completed. The board shall stipulate that any contractor awarded funds under this section shall use, to the maximum extent possible, prison laborers provided by the Department of Corrections. The Board of Water and Natural Resources shall promulgate rules pursuant to chapter 1-26 to specify eligibility criteria, application procedures, eligible uses of funds, and administration requirements for any financial assistance to be awarded pursuant to this section.
Source: SL 1996, ch 219, § 3.
34A-6-87. Illegal dumping penalties.
It is unlawful to willfully dispose of solid waste in a manner inconsistent with the provisions of this chapter. Illegal disposal of solid waste in a quantity less than ten pounds shall constitute littering as provided in chapter 34A-7. Any person illegally disposing of solid waste in a quantity of ten pounds or more, but less than two thousand pounds or who unintentionally disposes of solid waste in excess of two thousand pounds in a manner inconsistent with this chapter is guilty of illegal dumping in the second degree. Any person who knowingly and intentionally disposes of solid waste in a manner inconsistent with the provisions of this chapter in a quantity in excess of two thousand pounds is guilty of illegal dumping in the first degree. Illegal dumping in the first degree is a Class 6 felony. Illegal dumping in the second degree is a Class 1 misdemeanor.
Source: SL 1992, ch 254, § 50N; SL 1993, ch 172, § 2; SL 1993, ch 262.
34A-6-87.1. Disposal of tire waste--Collection or processing sites--Penalties for violations.
Any person hauling or transporting any waste tire as defined in subdivision 34A-6-61(25), originating from a wholesaler or retailer shall ensure the proper disposal of the waste tire at a department approved waste tire collection or processing site, or that it is used in some other manner approved by the department. The board may promulgate rules, pursuant to chapter 1-26, setting forth the requirements and procedures for department approval of waste tire collection, processing sites, or other approved uses for waste tires. Any waste tire hauler or transporter who intentionally disposes of any waste tire in a manner inconsistent with the provisions of this section is subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than ten thousand dollars per day per violation, or for costs to clean up sites not approved, or both. The violator is also subject to the criminal penalties provided for in § 34A-6-87.
Source: SL 1998, ch 202, § 1.
34A-6-89. Scale device required--Records--Report--Contents--Permit for longer capacity disposal.
Any solid waste facility permitted to dispose of solid waste in excess of one hundred thousand tons per year shall be equipped with a scale device, approved by the Department of Public Safety, and shall weigh and maintain records of the total amount of solid waste disposed of at the facility. On or before the fifteenth of each month, the facility shall submit to the department a report upon such forms as may be prescribed by the department in rules promulgated pursuant to chapter 1-26. The report shall state the total amount of solid waste disposed of at the facility in the preceding month. The forms shall contain a sworn certification by the owner or operator that the information contained in the monthly report is true and correct based upon his own best information, knowledge, and belief. No facility may dispose of solid waste in excess of one hundred fifty thousand tons per year without a permit authorizing the capacity of the facility to dispose of solid waste in such quantities as provided in § 34A-6-1.16.
Source: SL 1992, ch 254, § 50Q; SL 2004, ch 17, § 231.
34A-6-91. Wholesaler or retailer exchange of lead acid batteries.
Any wholesaler or retailer of lead acid batteries shall accept, on a one for one exchange basis, used lead acid batteries and shall ensure the proper handling and disposal of the batteries.
Source: SL 1992, ch 254, § 50U.
34A-6-92. Beverage containers, garbage bags, and plastic packaging materials--Preemption--Specially designated garbage bags.
The provisions of chapter 34A-7 relating to beverage containers, garbage bags, and garbage can liners, auxiliary containers, and § 34A-6-68 relating to uniform recycling codes for plastic containers, preempt all laws by any other political subdivision of the state relating to auxiliary containers, beverage containers, garbage bags, straws used for beverage consumption, or plastic packaging materials. No other political subdivision of the state may enact any law restricting the use in commerce of auxiliary containers, beverage containers, garbage bags, straws used for beverage consumption, or plastic packaging materials. Nothing in §§ 34A-6-59 to 34A-6-92, inclusive, may be construed to limit a political subdivision from allowing or requiring specially designated garbage bags for the purpose of identifying volume or type of waste or restricting the use of glass bottles and containers within park or recreation sites and facilities due to public safety concerns.
Source: SL 1992, ch 254, § 50V; SL 2020, ch 153, § 1.
34A-6-93. Infectious waste defined.
For purposes of this chapter, the term, infectious waste, means medical waste that contains any disposable equipment, instruments, utensils, human tissue, laboratory waste, blood specimens, or substances that carry pathogenic organisms from rooms of patients who have been diagnosed or are suspected of having a communicable disease; disposable substances that carry pathogenic organisms; and surgical operating room pathogenic specimens or substances that carry pathogenic organisms.
The following do not constitute infectious waste:
(1) Hazardous waste;
(2) Household waste or household-type waste generated in a facility;
(3) Ash from incineration of regulated medical waste;
(4) Residues from treatment and destruction processes once the waste has been both treated and stored;
(5) Human corpses, remains, and anatomical parts that are intended for interment or cremation;
(6) Etiologic agents being transported interstate pursuant to applicable shipping requirements;
(7) Samples of regulated medical waste transported off-site for enforcement purposes by the United States Environmental Protection Agency or the state; and
(8) Animal carcasses or body parts that result from the diagnosis and treatment of animal diseases.
Source: SL 1992, ch 259, § 1.
34A-6-93.1. Medical waste defined.
For purposes of this chapter, medical waste means disposable equipment, instruments, utensils, human tissue, laboratory waste, blood specimens, or other substances that could carry pathogenic organisms.
Source: SL 2013, ch 167, § 1; SL 2015, ch 193, § 2.
34A-6-94. Unlawful possession of infectious waste in the second degree--Violation as misdemeanor.
Except as permitted in this chapter, no person may:
(1) Knowingly and intentionally possess more than twenty gallons or two hundred pounds, whichever is less, of an aggregate weight or volume of infectious waste at a place other than the facility at which such waste was generated; or
(2) Recklessly possess more than forty gallons or four hundred pounds, whichever is less, of an aggregate weight or volume of waste at a place other than the facility at which such waste was generated.
A violation of this section constitutes unlawful possession of infectious waste in the second degree and is a Class 1 misdemeanor.
Source: SL 1992, ch 259, § 2.
34A-6-95. First degree unlawful possession of infectious waste--Felony.
Except as permitted in this chapter, no person may:
(1) Knowingly and intentionally possess more than three hundred gallons or three thousand pounds, whichever is less, of an aggregate weight or volume of infectious waste at a place other than the facility at which such waste was generated; or
(2) Recklessly possess more than five hundred gallons or five thousand pounds, whichever is less, of an aggregate weight or volume of infectious waste at a place other than the facility at which such waste was generated.
A violation of this section constitutes unlawful possession of infectious waste in the first degree and is a Class 6 felony.
Source: SL 1992, ch 259, § 3.
34A-6-96. Unlawful release of infectious waste in fourth degree.
A person is guilty of unlawful release of infectious waste in the fourth degree if the person with criminal negligence, engages in conduct which causes the release to the environment of infectious waste. Unlawful release of infectious waste in the fourth degree is a Class 1 misdemeanor.
Source: SL 1992, ch 259, § 4.
34A-6-97. Unlawful release of infectious waste in third degree.
A person is guilty of unlawful release of infectious waste in the third degree if the person:
(1) Recklessly engages in conduct which causes the release to the environment of infectious waste; or
(2) Knowingly engages in conduct which causes the release to the environment of infectious waste.
Unlawful release of infectious waste in the third degree is a Class 6 felony.
Source: SL 1992, ch 259, § 5.
34A-6-98. Unlawful release of infectious waste in second degree.
A person is guilty of unlawful release of infectious waste in the second degree if the person:
(1) Knowingly or recklessly engages in conduct which causes the release to the environment of infectious waste which includes any quantity of infectious waste which is capable at the time of transport, or at any time thereafter, of causing disease, or physical injury; or
(2) Knowingly or recklessly engages in conduct constituting a single criminal transaction which causes the release to the environment of more than five hundred gallons or five thousand pounds, whichever is less, of infectious waste.
Unlawful release of infectious waste in the second degree is a Class 5 felony.
Source: SL 1992, ch 259, § 6.
34A-6-99. Unlawful release of infectious waste in first degree.
A person is guilty of unlawful release of infectious waste in the first degree if the person:
(1) Knowingly engages in conduct which causes the release to the environment of infectious waste, which includes any quantity of infectious waste which is capable at the time of transport, or at any time thereafter, of causing serious physical injury or death to any person who is not a participant in the crime; or
(2) Knowingly engages in conduct constituting a single criminal transaction which causes the release to the environment of more than one thousand gallons or ten thousand pounds, whichever is less, of an aggregate weight or volume of infectious waste.
Unlawful release of infectious waste in the first degree is a Class 4 felony.
Source: SL 1992, ch 259, § 7.
34A-6-100. Unlawful dealing in infectious waste.
No person may, with intent to cause an unlawful release of infectious waste:
(1) Transfer, transport, repackage, or convey the waste to another person, thereby causing the other person to possess, store, transport, or dispose of the infectious waste in violation of this chapter; or
(2) Receive or agree to receive a benefit in exchange for possessing, storing, transporting, or disposing of infectious waste in violation of this chapter; or
(3) Confer or offer or agree to confer a benefit upon another person to induce the person to possess, store, transport, or dispose of infectious waste in violation of this chapter.
Unlawful dealing in infectious waste is a Class 5 felony.
Source: SL 1992, ch 259, § 8.
34A-6-101. Court-imposed monetary penalties.
If a person is convicted of a crime under the provisions of §§ 34A-6-93 to 34A-6-102, inclusive, the sentence of the court, in addition to the penalties provided in §§ 22-6-1 and 22-6-2, may include the following:
(1) Payment of the cost of restoring to its original state the area where infectious waste was released unlawfully in violation of the provisions of this chapter;
(2) A sentence to pay a fine in an amount fixed by the court, not exceeding the higher of:
(a) One hundred fifty thousand dollars for a Class 4 felony;
(b) One hundred thousand dollars for a Class 5 felony;
(c) Fifty thousand dollars for a Class 6 felony;
(d) Fifteen thousand dollars for a Class 1 misdemeanor; or
(e) Double the amount of the defendant's gain from the commission of the crime.
Source: SL 1992, ch 259, § 9.
34A-6-102. Disposition of fines.
All fines and penalties collected pursuant to §§ 34A-6-93 to 34A-6-102, inclusive, shall be deposited in the regulated substance response fund established in § 34A-12-3.
Source: SL 1992, ch 259, § 10.
34A-6-102.1. Unlawful release of medical waste to recycling disposal destination--Misdemeanor.
A person, as defined in subdivision 22-1-2(31), but excluding any natural person is guilty of unlawful release of medical waste if the person with negligence engages in conduct which causes the release of medical waste to a recycling disposal destination. Any natural person is guilty of unlawful release of medical waste if the person with negligence engages in conduct which causes the release of medical waste from a residence to a recycling disposal destination with knowledge of the prohibition contained in this section. Unlawful release of medical waste is a Class 2 misdemeanor.
Source: SL 2013, ch 167, § 2; SL 2015, ch 193, § 1.
34A-6-102.2. Actual knowledge of hauler or transporter required.
No hauler or transporter of waste may be prosecuted for unlawful release of medical waste under § 34A-6-102.1 unless the hauler or transporter of waste had actual knowledge that medical waste had been placed in the hauler or transporter's dumpster by another person before the waste was released to the recycling center.
Source: SL 2013, ch 167, § 3.
34A-6-103. County approval required for solid waste or medical waste transportation, storage, treatment or disposal.
Any application to the Board of Minerals and Environment or the secretary for a new permit or first authorization to operate under a general permit for a facility for the transportation, storage, treatment, or disposal of solid waste or medical waste pursuant to this chapter shall include a resolution by the governing body of the county in which the facility is to be located approving the proposed facility. Approval by the county within no more than twenty-four months before the issuance of the new permit or first authorization by the Board of Minerals and Environment or the secretary is a condition for the issuance of the permit or authorization. Approval granted under this section may only be rescinded by the county before the new permit or first authorization is issued and only if a significant change in the size, purpose, or location of the proposed facility has occurred.
Source: SL 1992, ch 258; SL 1996, ch 220, § 1.
34A-6-103.1. Board of commissioners' meetings required before approval of solid waste facility--Applicant to provide information--Preliminary approval--Notice--Costs of notice.
The county may not grant approval for a municipal solid waste landfill, materials recovery facility, or incinerator under § 34A-6-103 unless at least two meetings of the county board of commissioners have been held to consider the question of county approval. The first meeting shall include an explanation of the state solid waste permitting process and the requirement for county approval pursuant to § 34A-6-103. The county may, at the first meeting, issue a preliminary approval of the facility. If the county board of commissioners grants preliminary approval at the first meeting, a second meeting shall be held at least one hundred twenty days after the preliminary approval was granted. The county shall publish notice of the second meeting in the official newspapers of the county at least twice in each of the two consecutive thirty-day periods immediately preceding the second meeting. The county board of commissioners may grant official approval for purposes of § 34A-6-103 at the second meeting. At the first meeting, the applicant shall present the following information with respect to the proposed facility:
(1) Size and capacity;
(2) Location and legal description;
(3) Area to be served by the facility;
(4) Type of waste to be accepted;
(5) Types of state permits to be applied for;
(6) If applicable, the type of liner and leachate collection system;
(7) If the facility is to include an incinerator, the type and model of the incinerator;
(8) If the facility is for the disposal of ash, the method of disposal of the ash;
(9) Expected lifespan of the facility; and
(10) If the facility is a materials recovery facility, information about the type of materials recovery facility and whether the materials will be presorted or commingled.
The applicant shall reimburse the county for the cost to publish the notice required by this section.
Source: SL 1996, ch 220, §§ 2, 3.
34A-6-104. Promulgation of certain rules in state solid waste programs.
The board may promulgate rules pursuant to chapter 1-26, in order to implement the provisions of 40 CFR parts 257 and 258 as amended to January 1, 1993, in a state solid waste program approved by the United States Environmental Protection Agency.
Source: SL 1993, ch 257, § 9.
34A-6-105. Big Stone power plant approved.
Pursuant to the provisions of § 34A-6-53, the Legislature hereby approves the operation of the Big Stone Power Plant near Big Stone City, South Dakota, with respect to the disposal of solid waste and finds that the facility is environmentally safe according to regulations in effect in 1993 and as permitted by the Board of Minerals and Environment and is in the public interest. The operation shall be in accordance with the terms of a solid waste permit or permit renewal issued by the Board of Minerals and Environment.
Source: SL 1993, ch 260.
34A-6-106. Sioux Falls/Regional Sanitary Landfill approved.
Pursuant to the provisions of § 34A-6-53, the Legislature hereby approves the operation of the Sioux Falls/Regional Sanitary Landfill located near Sioux Falls, South Dakota, with respect to the disposal of solid waste and finds that the facility is environmentally safe and in the public interest. The operation shall be in accordance with the terms of a solid waste permit or permit renewal issued by the Board of Minerals and Environment.
Source: SL 1997, ch 211, § 1.
34A-6-107. Purchase of certain beer kegs by recycler, scrap metal dealer, or scrap yard operator prohibited--Violation as misdemeanor.
No recycler, scrap metal dealer, or scrap yard operator may purchase any metal beer keg, whether damaged or undamaged, except from the brewer or its authorized representative, if:
(1) The keg is clearly marked as the property of a brewery manufacturer; or
(2) The keg's identification markings have been made illegible.
A violation of this section is a Class 2 misdemeanor.
Source: SL 2008, ch 178, § 1.
34A-6-108. Definition of terms.
Terms used in this section and §§ 34A-6-109 to 34A-6-112, inclusive, mean:
(1) "Industrial or commercial account," any person or business, including a scrap metal business, operating from a fixed location, that sells nonferrous metal to a scrap metal recycler pursuant to a contractual arrangement or agreement;
(2) "Law enforcement officer," any law enforcement officer as defined in § 23-3-7;
(3) "Nonferrous metal property," any metal property for which the value of the metal property is derived from the property's content of copper, brass, aluminum, bronze, lead, zinc, platinum, rhodium, palladium, or nickel, or any of their alloys, including detached catalytic converters. Aluminum does not include any food or beverage containers, except for a beer keg;
(4) "Record," a paper, electronic, or other method of storing information;
(5) "Scrap metal business," any scrap metal supplier, scrap metal recycling center, or scrap metal processor;
(6) "Transaction," a pledge to buy, the purchase of, or the trade for any nonferrous metal property by a scrap metal business from any person. A transaction does not include a sale or trade involving any industrial or commercial account.
Source: SL 2008, ch 179, § 1; SL 2022, ch 139, § 1.
34A-6-109. Scrap metal business--Recordkeeping requirements.
Each scrap metal business shall keep records of each transaction involving the purchase of nonferrous metal property that exceeds one hundred dollars, provided that records of any transaction involving a detached catalytic converter must be kept regardless of purchase price. The scrap metal business shall be able to produce an accurate and legible record of each transaction involving nonferrous metal property at the location where the scrap metal is purchased. The records shall contain the following:
(1) Date, location, and value of the transaction;
(2) Signature of the person selling the nonferrous metal property;
(3) Name, street address, city, and state of the seller;
(4) Photocopy of the seller's current driver license or other government issued picture identification card;
(5) A description of the predominant types of nonferrous metal property involved in the transaction, including the weight, quantity, or volume of the scrap nonferrous metal; and
(6) Name of the employee representing the scrap metal business in the transaction.
Source: SL 2008, ch 179, § 2; SL 2019, ch 161, § 1; SL 2022, ch 139, § 2.
34A-6-109.1. Purchases to be made by check or electronic funds transfer.
Any payment for the purchase of nonferrous metal property that exceeds one hundred dollars shall be made by either check or electronic funds transfer.
Source: SL 2019, ch 161, § 2.
34A-6-109.2. Purchase of catalytic converters--Limitations.
Only a scrap metal business with a valid state sales tax license may purchase a detached catalytic converter.
A person may not purchase, trade for, or pledge to buy a detached catalytic converter, or offer or advertise to purchase, trade for, or pledge to buy a detached catalytic converter, unless the person follows the requirements under §§ 34A-6-108 to 34A-6-112, inclusive.
Source: SL 2022, ch 139, § 3.
34A-6-110. Scrap metal business records open to inspection by law enforcement officers.
The record required by §§ 34A-6-108 to 34A-6-112, inclusive, shall be open to the inspection of any law enforcement officer at all times during the ordinary hours of business or at reasonable times if ordinary hours of business are not kept. The record shall be maintained at the location that the business is conducted for one year following the date of the transaction.
Source: SL 2008, ch 179, § 3.
34A-6-111. Copies of scrap metal business records--Report of lost or stolen nonferrous metal property.
If a copy of the record of the transaction is requested by a law enforcement officer, a scrap metal business shall furnish a full, true, and correct transcript of the record from the purchase or receipt of the nonferrous metal property. This record shall be provided or transmitted to the applicable law enforcement agency within two business days.
If the scrap metal business has good cause to believe that any nonferrous metal property in the business's possession is lost or stolen, the scrap metal business shall promptly report that fact to a law enforcement officer, together with the name of the owner, if known, and the date of transaction and the name of the person from whom it was received.
Source: SL 2008, ch 179, § 4.
34A-6-112. Hold on nonferrous metal item suspected to be lost or stolen.
If the scrap metal business is notified by a law enforcement officer that an item of nonferrous metal property has been reported as stolen, a scrap metal business shall hold that property intact and safe from alteration, damage, or commingling, and shall place an identifying tag or other suitable identification on the property. The scrap metal business shall hold the property for a period of time as directed by the law enforcement agency up to a maximum of ten business days.
A law enforcement officer may not place on hold any item of nonferrous metal property unless that law enforcement agency reasonably suspects that the property is a lost or stolen item. Any hold that is placed on the nonferrous metal property shall be removed within ten business days. If the property on hold is determined not to be lost or stolen, the nonferrous metal property shall be returned to the owner or released.
Source: SL 2008, ch 179, § 5.
34A-6-113. Disposal of certain oil and gas field liquid wastes prohibited.
No saltwater, crude oil, waste oil, or other oil or gas field liquid wastes may be stored in an earthen pit or open receptacle unless the facility is directly associated with the development of a specific well or producing property and receives liquid wastes only from that specific well or producing property.
Source: SL 2013, ch 168, § 1.
34A-6-114. Disposal of certain radionuclides at solid waste facility prohibited.
Radionuclides found in nature, such as radium, thorium, and uranium, that have become concentrated through human activities, and which have been generated during oil and gas production activities with a total laboratory-measured radioactivity level of Radium-226 plus Radium-228 greater than 5 picocuries/gram above the background radioactivity level, are prohibited from being disposed of at any solid waste facility permitted under this chapter. The background radioactivity level is as measured at each individual permitted solid waste facility. All radioactivity levels shall be measured using methods and procedures approved by the Department of Agriculture and Natural Resources.
Source: SL 2013, ch 168, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-7-1
Definition of terms.
34A-7-2
Receptacles in public places.
34A-7-3
Property where receptacles required.
34A-7-4
Repealed.
34A-7-5, 34A-7-5.1. Repealed.
34A-7-5.2
Repealed.
34A-7-6
Littering prohibited--Exceptions--Violation as misdemeanor.
34A-7-7
Littering from motor vehicle prohibited--Transporting litter to highway or rest area
receptacles prohibited--Violation as misdemeanor.
34A-7-8
Motor vehicle littering as traffic violation--Forwarding of conviction report--Penalties not exclusive.
34A-7-9
Accumulation of litter on property prohibited--Violation as misdemeanor.
34A-7-10
Enforced removal of litter upon conviction of accumulation violation--Costs taxed
against violator.
34A-7-11
Injunction against continuing violators.
34A-7-12
Injunction of violations--Citizens' suits--Alternative or in addition to criminal
proceedings.
34A-7-13
Application of chapter throughout state--Home rule ordinances permitted.
34A-7-14
Ordinances to regulate litter authorized.
34A-7-15
Arrest for violation of municipal litter ordinance--Notice to appear--Time--Refusal
to give written promise to appear.
34A-7-16
Enforcement and prosecution.
34A-7-17
Punishment for litter with aggregate weight of over five pounds.
34A-7-1. Definition of terms.
Terms used in this chapter mean:
(1) "Beverage," beer or other malt beverages and mineral waters, soda water, and similar carbonated soft drinks in liquid form and intended for human consumption;
(2) "Beverage container," the individual, separate, sealed glass, metal, or plastic bottle, can, jar, or carton containing a beverage;
(3) "Biodegradable," degradable through a process by which fungi or bacteria secrete enzymes to convert a complex molecular structure to simple gasses and organic compounds;
(4) "Degradable," capable of decomposing by biodegradation, photodegradation, or chemical process into harmless component parts after exposure to natural elements for not more than three hundred sixty-five days;
(5) "Litter," any discarded, used, or unconsumed substance or waste, including any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines, glass, metal, plastic, or paper containers or other packaging construction material, abandoned motor vehicle, as defined in § 32-36-2, motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or offensive matter of any kind, any object likely to injure any person or create a traffic hazard, or anything else of an unsightly or unsanitary nature, which has been discarded, abandoned or otherwise disposed of improperly;
(6) "Motor vehicle," as that term is defined in § 32-36-2;
(7) "Photodegradable," degradable through a process in which ultraviolet radiation in sunlight causes a chemical change in a material;
(8) "Secretary," the secretary of the Department of Agriculture and Natural Resources of South Dakota.
Source: SL 1974, ch 242, § 1; SDCL Supp, § 34-16C-1; SL 1976, ch 214, §§ 3, 8, 10; SL 1989, ch 307, § 1; SL 1989, ch 308, § 1; SL 2011, ch 165, § 125; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-7-2. Receptacles in public places.
In order to assist the public in complying with this chapter, the owner or person in control of any property which is held out to the public as a place for assemblage, the transaction of business, recreation, or as a public way shall cause to be placed and maintained receptacles for the deposit of litter, of sufficient volume and in sufficient numbers to contain the litter which can be expected to be generated by the numbers of people customarily coming on or using the property.
A receptacle shall be maintained in a manner to prevent overflow or spillage of litter from the receptacle.
A violation of this section is a petty offense.
Source: SL 1974, ch 242, § 8; SDCL Supp, § 34-16C-5; SL 1976, ch 214, § 4; SL 1977, ch 190, § 37.
34A-7-3. Property where receptacles required.
For purposes of § 34A-7-2, the term, property held out to the public for the transaction of business, includes commercially operated parks, campgrounds, drive-in restaurants, automobile service stations, business parking lots, car washes, shopping centers, marinas, boat launching areas, industrial parking lots, boat moorage and fueling stations, piers, beaches and bathing areas, airports, roadside rest stops, drive-in movies, and shopping malls. For purposes of § 34A-7-2, the term, property held out to the public for assemblage, recreation, or as a public way, includes any property that is publicly owned or operated for any of the purposes stated in the definition in this section for "property held out to the public for the transaction of business" but excludes state highway rights of way and rest areas located on state highway rights of way.
Source: SL 1974, ch 242, § 8; SDCL Supp, § 34-16C-6; SL 2011, ch 165, § 126.
34A-7-5, 34A-7-5.1. Repealed by SL 2012, ch 215, §§ 33, 34.
34A-7-6. Littering prohibited--Exceptions--Violation as misdemeanor.
No person may dump, deposit, drop, throw, discard, leave, cause or permit the dumping, depositing, dropping, throwing, discarding or leaving of litter upon any public or private property in this state, or upon or into any river, lake, pond, or other stream or body of water in this state, unless:
(1) The property has been designated by the state or any of its agencies or political subdivisions, for the disposal of litter, and the litter is disposed of on that property in accordance with the applicable rules promulgated pursuant to chapter 1-26 by the Board of Minerals and Environment;
(2) The litter is placed into a receptacle or other container intended by the owner or tenant in lawful possession of that property for the deposit of litter;
(3) The person is the owner or tenant in lawful possession of the property or has first obtained the consent of the owner or tenant in lawful possession, or unless the act is done under the personal direction of the owner or tenant and does not create a public health or safety hazard, a public nuisance, or a fire hazard;
(4) The person is acting under the direction of proper public officials during special cleanup days; or
(5) The person is lawfully acting in or reacting to an emergency situation where health and safety is threatened, and removes and properly disposes of such litter when the emergency situation no longer exists.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1974, ch 242, § 3; SDCL Supp, § 34-16C-10; SL 1986, ch 295, § 29; SL 1992, ch 158, § 44; SL 1993, ch 256, § 33.
34A-7-7. Littering from motor vehicle prohibited--Transporting litter to highway or rest area receptacles prohibited--Violation as misdemeanor.
No person may dump, deposit, drop, throw, discard, or otherwise dispose of litter from any motor vehicle upon any public highway, upon any public or private property or upon or into any river, lake, pond, stream, or body of water in this state except as permitted by law. No person may transport by any means garbage or refuse from any dwelling, residence, place of business, farm, or other site to and deposit such material in, around, or on top of trash barrels or other receptacles placed along public highways or at roadside rest areas. A violation of this section is a Class 2 misdemeanor.
Source: SL 1974, ch 242, § 4; SDCL Supp, § 34-16C-11; SL 1992, ch 158, § 45; SL 2011, ch 165, § 127.
34A-7-8. Motor vehicle littering as traffic violation--Forwarding of conviction report--Penalties not exclusive.
In addition to any penalty imposed under this chapter, a person convicted of violating § 34A-7-7 while operating a motor vehicle is considered to have been convicted of a moving traffic violation. A report of conviction of the provisions of this chapter shall be forwarded to the Department of Public Safety by the court within ten days after the date the conviction is entered.
The penalties prescribed in this section are in addition to, and not in lieu of, any penalties, rights, remedies, duties, or liabilities otherwise imposed or conferred by law.
Source: SL 1974, ch 242, § 7; SDCL Supp, § 34-16C-12; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2011, ch 165, § 128.
34A-7-9. Accumulation of litter on property prohibited--Violation as misdemeanor.
No person may allow litter to accumulate upon real property, of which the person charged is the owner or tenant in control, in such a manner as to constitute a public nuisance or in such a manner that the litter may be blown or otherwise carried by the natural elements onto the real property of another person. A violation of this section is a Class 2 misdemeanor.
Source: SL 1974, ch 242, § 5; SDCL Supp, § 34-16C-13; SL 1992, ch 158, § 46; SL 2011, ch 165, § 129.
34A-7-10. Enforced removal of litter upon conviction of accumulation violation--Costs taxed against violator.
In addition to any fine imposed under this chapter, the court may order that the person convicted of such a violation remove and properly dispose of the litter, may employ special bailiffs to supervise such removal and disposal, and may tax the costs of such supervision as costs against the person so convicted.
Source: SL 1974, ch 242, § 6; SDCL Supp, § 34-16C-14.
34A-7-11. Injunction against continuing violators.
The attorney general may file for an injunction against continuing violators of this chapter.
Source: SL 1974, ch 242, § 12; SDCL Supp, § 34-16C-15; SL 1976, ch 214, § 7; SL 1977, ch 190, § 39; SL 1992, ch 158, § 47.
34A-7-12. Injunction of violations--Citizens' suits--Alternative or in addition to criminal proceedings.
Any person violating the provisions of this chapter may be enjoined from further violations in the circuit courts of this state. Such suits may be brought by any citizen of the state. An action for injunction shall be an alternative to, or in addition to, criminal proceedings.
Source: SL 1976, ch 214, § 2; SDCL Supp, § 34-16C-15.1.
34A-7-13. Application of chapter throughout state--Home rule ordinances permitted.
This chapter applies throughout the state, both within and without home rule units. Nothing in this chapter prohibits the enactment of litter control ordinances by home rule units but the requirements of such ordinances must be at least as stringent as those imposed by this chapter.
Source: SL 1974, ch 242, § 11; SDCL Supp, § 34-16C-16.
34A-7-14. Ordinances to regulate litter authorized.
Municipalities and counties may by ordinance regulate litter, provide penalties for violations of such ordinances, establish procedures for court appearances for violations, and provide penalties for failure to appear on a written promise.
Source: SL 1976, ch 213; SDCL Supp, § 34-16C-16.1; SL 2011, ch 165, § 130.
34A-7-15. Arrest for violation of municipal litter ordinance--Notice to appear--Time--Refusal to give written promise to appear.
Except as otherwise provided, if any person is arrested for a violation of any municipal ordinance adopted pursuant to this chapter, the arresting law enforcement officer or other municipal enforcement officer shall take the name and address of the person and issue a complaint or otherwise notify the person in writing to appear at a time and place to be specified in the complaint or notice. The time shall be at least five days after the arrest unless the person arrested demands an earlier hearing. If the person gives written promise to appear at the designated time and place, the officer shall release the person from custody. Any person refusing to give such written promise to appear may be prosecuted as in the manner of other violations of city ordinances.
Source: SL 1976, ch 214, § 1; SDCL Supp, § 34-16C-16.2; SL 2011, ch 165, § 131.
34A-7-16. Enforcement and prosecution.
This chapter shall be enforced by all law enforcement officers including conservation officers in their respective jurisdictions, whether employed by the state or by any unit of local government. Prosecutions for violation of this chapter shall be conducted by the state's attorneys of the several counties and by the attorney general of this state.
Source: SL 1974, ch 242, § 10; SDCL Supp, § 34-16C-17.
34A-7-17. Punishment for litter with aggregate weight of over five pounds.
In addition to the penalties provided, any violation of § 34A-7-6 or 34A-7-7 that involves littering with an aggregate weight of more than five pounds is punishable by a fine not to exceed one thousand dollars, of which twenty percent shall be paid to any person who provides information that leads to the conviction of any person for an offense that is subject to the provisions of this section. In addition, the court shall order the person who has been convicted to gather and dispose of litter in the area for a length of time to be determined by the court.
Source: SL 1996, ch 221, § 2.
CHAPTER 34A-8
ENDANGERED AND THREATENED SPECIES
34A-8-1 Definition of terms.
34A-8-2 Investigation of wildlife by secretary--Information developed.
34A-8-3 Lists of endangered and threatened species promulgated--Basis for determination.
34A-8-4 Biennial review of lists of endangered and threatened species--Amendments.
34A-8-5 Lists of endangered or threatened species--Add or remove species.
34A-8-6 Departments to manage, protect, and restore endangered and threatened species.
34A-8-7 Programs and agreements for management of endangered species--Prairie dog control on private lands.
34A-8-8 Permitting capture of endangered and threatened species--Authorized purposes.
34A-8-9 Possession, transportation and sale of endangered and threatened species prohibited--Violation as misdemeanor.
34A-8-10 Importation, possession, sale, or purchase of endangered or threatened species under permit, license, or other documentation--Violation as misdemeanor.
34A-8-11 Permits for capture or destruction of, wildlife to protect life or property--Violation of permit--Emergency protection of human life.
34A-8-12 34A-8-12. Repealed by SL 1992, ch 158, § 50.
34A-8-13 Legislative approval required for reintroduction of species.
34A-8-1. Definition of terms.
Terms as used in this chapter, unless the context otherwise requires, mean:
(1) "Endangered species," any species of wildlife or plants which is in danger of extinction throughout all or a significant part of its range other than a species of insects determined by the Game, Fish and Parks Commission or the secretary of the United States Department of Interior to constitute a pest whose protection under this chapter would present an overwhelming and overriding risk to man;
(2) "Nongame species," any wildlife species not legally classified a game species, fur-bearer, threatened species, or as endangered by statute or regulations of this state;
(3) "Threatened species," any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range;
(4) "Wildlife," any nondomesticated animal, whether reared in captivity or not, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.
Source: SL 1977, ch 335, § 1.
34A-8-2. Investigation of wildlife by secretary--Information developed.
The game, fish and parks secretary shall conduct investigation on nongame, endangered, or threatened wildlife to develop information relating to population, distribution, habitat needs, limiting factors, and other biological and ecological data to determine management measures necessary to ensure their perpetuation as viable components of their ecosystem and for human enjoyment.
Source: SL 1977, ch 335, § 3.
34A-8-3. Lists of endangered and threatened species promulgated--Basis for determination.
On the basis of determinations pursuant to § 34A-8-2 the Game, Fish and Parks Commission shall promulgate a list of those species of wildlife which are determined to be endangered or threatened within the state. The Game, Fish and Parks Commission shall make these determinations on the basis of the best scientific, commercial, and other data available to them and after consultation, as appropriate, with federal agencies, other interested state agencies, other states having a common interest in the species and interested persons and organizations.
Source: SL 1977, ch 335, § 3.
34A-8-4. Biennial review of lists of endangered and threatened species--Amendments.
The Game, Fish and Parks Commission shall conduct a review of the state list of endangered and threatened species within the period ending July 3, 1979, and every two years thereafter and may amend the list by appropriate additions or deletions.
Source: SL 1977, ch 335, § 3.
34A-8-5. Lists of endangered or threatened species--Add or remove species.
The Game, Fish and Parks Commission may not add a species to nor remove a species from any list pursuant to § 34A-8-3 or 34A-8-4, until it has:
(1) Promulgated a rule, pursuant to chapter 1-26, for the addition or removal of the subject species; and
(2) Notified the Governor of any state sharing a common border with this state and in which the subject species is known to exist that such action is being proposed.
Source: SL 1977, ch 335, § 3; SL 2021, ch 164, § 1.
34A-8-6. Departments to manage, protect, and restore endangered and threatened species.
The Department of Game, Fish and Parks and the Department of Agriculture and Natural Resources shall perform those acts necessary for the conservation, management, protection, restoration, and propagation of endangered, threatened, and nongame species of wildlife.
Source: SL 1977, ch 335, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8-7. Programs and agreements for management of endangered species--Prairie dog control on private lands.
The secretary of agriculture and natural resources and the secretary of game, fish and parks shall establish programs, with legislative approval and may enter into cooperative agreements with federal and state agencies or with private persons as deemed necessary for the management of nongame, endangered, or threatened species. The secretaries shall establish and conduct control programs at state expense on private lands that are encroached upon by prairie dogs from contiguous public lands.
Source: SL 1977, ch 335, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8-8. Permitting capture of endangered and threatened species--Authorized purposes.
The secretary of agriculture and natural resources and the secretary of game, fish and parks may permit the taking, possession, purchase, sale, transportation, exportation, or shipment of species of plants or wildlife which appear on the state list of endangered or threatened species for scientific, zoological, or educational purposes, for propagation in captivity of such fish or wildlife to insure their survival.
Source: SL 1977, ch 335, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8-9. Possession, transportation and sale of endangered and threatened species prohibited--Violation as misdemeanor.
Except as otherwise provided in this chapter, no person may take, possess, transport, import, export, process, sell, or offer for sale, buy or offer to buy, nor may a common or contract carrier transport or receive for shipment, any species of wildlife or plants appearing on the following lists:
(1) The list of wildlife and plants indigenous to the state determined to be endangered or threatened within the state pursuant to §§ 34A-8-3 and 34A-8-4.
(2) The United States list of endangered or threatened native wildlife effective on January 1, 1977.
(3) The United States list of endangered or threatened foreign wildlife effective on January 1, 1977.
(4) The United States list of endangered or threatened plants effective on January 1, 1977.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1977, ch 335, § 5; SL 1992, ch 158, § 48.
34A-8-10. Importation, possession, sale, or purchase of endangered or threatened species under permit, license, or other documentation--Violation as misdemeanor.
A species of wildlife appearing on any of the lists enumerated in § 34A-8-9 may enter South Dakota from another state or from a point outside the territorial limits of the United States and may be transported, possessed, sold, and purchased in accordance with the terms of a permit issued pursuant to rules promulgated by the Game, Fish and Parks Commission pursuant to chapter 1-26. However, a person may transport into South Dakota or otherwise possess, sell, or purchase within the state any animal or parts thereof appearing on any of the lists enumerated in § 34A-8-9 that were lawfully taken or acquired in another state or lawfully taken or acquired from a point outside the territorial limits of the United States if the items are accompanied by the appropriate license, documentation, Convention on International Trade in Endangered Species (CITES) permit, or CITES tag. It is a Class 2 misdemeanor to transport, possess, sell or purchase a species of wildlife appearing on any of the lists enumerated in § 34A-8-9 in violation of the conditions of a permit, or to transport, possess, sell, or purchase any part thereof, in violation of the provisions of this section. The provisions of this section do not apply to any captive nondomestic animal of the mammalia class and the products thereof regulated by the Animal Industry Board under Title 40.
Source: SL 1977, ch 335, § 6; SL 1993, ch 256, § 34; SL 2007, ch 236, § 4.
34A-8-11. Permits for capture or destruction of, wildlife to protect life or property--Violation of permit--Emergency protection of human life.
Upon good cause shown and where necessary to alleviate damage to property or to protect human health, endangered or threatened species found on the state list may be removed, captured, or destroyed pursuant to a permit issued by the secretary of game, fish and parks. A violation of the terms of the permit is a Class 2 misdemeanor.
Carnivorous animals found on the state list may be removed, captured, or destroyed by any person in emergency situations involving an immediate threat to human life, provided that the removal, capture, or destruction shall be reported to the secretary or his representative within twenty-four hours of the act.
Source: SL 1977, ch 335, § 7; SL 1992, ch 158, § 49.
34A-8-13. Legislative approval required for reintroduction of species.
No species that is currently extinct in this state and that has been placed on the threatened or endangered species list pursuant to the federal "Endangered Species Act of 1973," as amended to January 1, 1995, may be reintroduced into this state through action by any federal, state, or local governmental entity, unless the Legislature has specifically enacted legislation naming the species and specifying the manner of reintroduction.
Source: SL 1995, ch 206.
34A-8A-1
Definitions of terms in §§ 34A-8A-2 to 34A-8A-7.
34A-8A-2
Promulgation of list of species of management concern--Factors considered.
34A-8A-3
Joint promulgation of rules.
34A-8A-4
Departments authorized to render assistance regarding species of management
concern.
34A-8A-5
Acts or omissions constituting nuisances.
34A-8A-6
Remedies for nuisances.
34A-8A-7
Abrogation of certain previous designations.
34A-8A-8
Prairie dog management plan.
34A-8A-9
Changes or amendments to the state prairie dog management plan--Approval by
Legislature.
34A-8A-1. Definitions of terms in §§ 34A-8A-2 to 34A-8A-7.
Terms used in this chapter mean:
(1) "Departments," the Department of Game, Fish, and Parks and the Department of Agriculture and Natural Resources;
(2) "Species of management concern," a species designated by the secretary of the Department of Agriculture and Natural Resources and the Game, Fish and Parks Commission as a species which shares the dual status of requiring both control and protection.
Source: SL 2001, ch 191, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8A-2. Promulgation of list of species of management concern--Factors considered.
The secretary of the Department of Agriculture and Natural Resources and the Game, Fish and Parks Commission shall establish, by rules promulgated pursuant to chapter 1-26, a list of species of management concern. In determining whether a species should be listed, the following factors are to be considered:
(1) Whether the species or its habitat, or both are of value ecologically and aesthetically and at the same time burdensome for property owners; and
(2) Whether the species may warrant protection at times and control at others depending on the rate of reproduction, climate, disease, population viability, and other factors.
Source: SL 2001, ch 191, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8A-3. Joint promulgation of rules.
Rules promulgated pursuant to § 34A-8A-2 shall be conducted jointly by both the Department of Agriculture and Natural Resources and the Game, Fish and Parks Commission, including joint notice, publication, hearings, and decision-making.
Source: SL 2001, ch 191, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8A-4. Departments authorized to render assistance regarding species of management concern.
If so requested, the departments may render assistance and advice regarding species of management concern including:
(1) Providing information to the public and property owners regarding the species of management concern and its characteristics, ecosystem values, and habitat; and
(2) Providing assistance in the development of conservation plans or control projects regarding the species of management concern.
Source: SL 2001, ch 191, § 4.
34A-8A-5. Acts or omissions constituting nuisances.
The following acts or omissions constitute nuisances:
(1) Engaging in practices which allow or cause a species of management concern to encroach upon the property of another or injure or endanger the property of another; or
(2) Failure to control the species of management concern thereby causing encroachment on the property of another or causing injury to or endangering the property of another.
Source: SL 2001, ch 191, § 5.
34A-8A-6. Remedies for nuisances.
In addition to any other remedies at law, the remedies set forth in chapter 21-10 apply to the nuisances described in § 34A-8A-5. These remedies include civil action, including injunctive relief and recovery of damages, and abatement. Abatement, if ordered by the court, shall include reimbursement for any reasonable and necessary costs incurred in abating the nuisance.
Source: SL 2001, ch 191, § 6.
34A-8A-7. Abrogation of certain previous designations.
Designation as a species of management concern abrogates any previous designation as a weed or pest.
Source: SL 2001, ch 191, § 7.
34A-8A-8. Prairie dog management plan.
The Department of Game, Fish and Parks and the Department of Agriculture and Natural Resources are directed to develop a state prairie dog management plan. The plan shall formulate state management actions that will serve to prevent the prairie dog from being listed as a federal threatened or endangered species. If such plan or any agreement adopted pursuant to such plan contains provisions for incentive payments to private landowners for managing prairie dog habitat or restricts private landowner rights to use any means of controlling prairie dogs on their property, the plan or any agreement adopted pursuant to such plan shall be submitted to the South Dakota Legislature, in bill form, for approval, prior to it becoming effective.
Source: SL 2002, ch 169, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-8A-9. Changes or amendments to the state prairie dog management plan--Approval by Legislature.
The Department of Agriculture and Natural Resources and the Department of Game, Fish and Parks shall submit any changes or amendments to any plan approved by the Legislature pursuant to § 34A-8A-8 for legislative approval before the changes or amendments may take effect.
Source: SL 2005, ch 195, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
34A-9-1
Definition of terms.
34A-9-2
Actions subject to chapter.
34A-9-3
Actions not subject to chapter.
34A-9-4
Environmental impact statement authorized--Fee--Purpose.
34A-9-4.1
Selection of contractor to prepare statement.
34A-9-4.2
Continuous appropriation of environmental impact statement file.
34A-9-5
Draft impact statement--Contents.
34A-9-6
Purpose of draft impact statement--Scoping meetings--Form and contents.
34A-9-7
Contents of environmental impact statement.
34A-9-8
Circulation of draft statement for comment.
34A-9-9
Filing of impact statement and comments before taking action--Responses to
comments.
34A-9-10
Findings required as to compliance and actions to minimize environmental problems.
34A-9-11
Impact statement not required if federal statement required.
34A-9-12
Prospective application of chapter.
34A-9-12.1
Establishment of environmental impact statement preparation fund--Source of fund--Administration--Appropriation and expenditures.
34A-9-13
Citation of chapter.
34A-9-1. Definition of terms.
Terms as used in this chapter, unless the context otherwise requires, mean:
(1) "Agency," the executive and administrative departments, offices, boards, commissions, and other units of the state government;
(2) "Board," the Board of Minerals and Environment;
(3) "Draft environmental impact statement," a preliminary statement prepared pursuant to § 34A-9-5;
(4) "Environment," the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character;
(5) "Environmental impact statement," a detailed statement setting forth the matters specified in § 34A-9-7. It includes any comments on a draft environmental statement which are received pursuant to § 34A-9-8, and the agency's response to such comments, to the extent that they raise issues not adequately resolved in the draft environmental statement;
(6) "Secretary," the secretary of the Department of Agriculture and Natural Resources.
Source: SL 1974, ch 245, § 1; SDCL Supp, § 11-1A-1; SL 1986, ch 295, § 30; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-9-2. Actions subject to chapter.
As used in this chapter, the term, actions, includes:
(1) New and continuing projects or activities directly undertaken by any public agency, or supported in whole or part through contracts, grants, subsidies, loans, or other forms of funding assistance from one or more public agencies;
(2) Policy, regulations, and procedure-making; or
(3) The issuance by one or more public agencies of a lease, permit, license, certificate, or other public entitlement to an applicant.
Source: SL 1974, ch 245, § 1 (2); SDCL Supp, § 11-1A-2; SL 1981, ch 13, § 10; SL 1981, ch 269, § 1; SL 2011, ch 165, § 132.
34A-9-3. Actions not subject to chapter.
As used in this chapter, the term, actions, does not include:
(1) Enforcement proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings;
(2) Actions of a ministerial nature, involving no exercise of discretion;
(3) Emergency actions responding to an immediate threat to public health or safety;
(4) Proposals for legislation; or
(5) Actions of an environmentally protective regulatory nature.
Source: SL 1974, ch 245, § 1 (3); SDCL Supp, § 11-1A-3; SL 2011, ch 165, § 133.
34A-9-4. Environmental impact statement authorized--Fee--Purpose.
All agencies may prepare, or have prepared by contract, an environmental impact statement on any major action they propose or approve which may have a significant effect on the environment. Any agency which prepares, or has prepared by contract, an environmental impact statement pursuant to subdivision 34A-9-2(3) shall assess a fee against the person seeking a lease, permit, license, certificate, or other public entitlement for the preparation of the statement. This fee shall be assessed in addition to and independently of any other fee or deposit required by any other provision of law. No lease, permit, license, certificate, or other public entitlement may be issued until the fee is paid. The purpose of an environmental impact statement is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of the action might be minimized, and to suggest alternatives to the action.
Source: SL 1974, ch 245, § 2; SDCL Supp, § 11-1A-4; SL 1981, ch 269, § 2.
34A-9-4.1. Selection of contractor to prepare statement.
Any agency, other than the Public Utilities Commission, which causes an environmental impact statement to be prepared by contract shall select a contractor proposal acceptable to both the agency and the person seeking a lease, permit, license, or other public entitlement.
Source: SL 1981, ch 269, § 4.
34A-9-4.2. Continuous appropriation of environmental impact statement file.
Any environmental impact statement fee paid pursuant to the provisions of § 34A-9-4 is appropriated continuously to the agency assessing the fee to be expended for the purposes of § 34A-9-4.
Source: SL 1992, ch 313, § 11.
34A-9-5. Draft impact statement--Contents.
As early as possible in the formulation of a proposal for action that is likely to require the preparation of an environmental impact statement, the responsible agency may prepare or may have prepared a draft environmental statement describing in detail the proposed action and reasonable alternatives to the action, and briefly discussing, on the basis of information then available to the agency, the remaining items set forth in § 34A-9-7.
Source: SL 1974, ch 245, § 3; SDCL Supp, § 11-1A-5; SL 1981, ch 269, § 3.
34A-9-6. Purpose of draft impact statement--Scoping meetings--Form and contents.
The purpose of a draft environmental statement is to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency in determining the environmental consequences of the proposed action. The agency requiring the preparation of the environmental impact statement shall conduct scoping meetings, prior to the preparation of the environmental impact statement, in the county in which the proposed action is to be located to solicit public input on what should be included in the environmental impact statement. The draft environmental statement should resemble in form and content the environmental impact statement to be prepared after comments have been received and considered pursuant to § 34A-9-9; however, the length and detail of the draft environmental statement may necessarily reflect the preliminary nature of the proposal and the early stage at which it is prepared.
Source: SL 1974, ch 245, § 3; SDCL Supp, § 11-1A-6; SL 1992, ch 254, § 77.
34A-9-7. Contents of environmental impact statement.
An environmental impact statement shall be prepared in accordance with the procedural requirements relating to citizen participation of the National Environmental Policy Act of 1969 as amended to January 1, 2011, and implementing regulations adopted pursuant to that act, and shall include, at a minimum, a detailed statement setting forth the following:
(1) A description of the proposed action and its environmental setting;
(2) The environmental impact of the proposed action including short-term and long-term effects;
(3) Any adverse environmental effects that cannot be avoided if the proposal is implemented;
(4) Alternatives to the proposed action;
(5) Any irreversible and irretrievable commitments of resources that would be involved in the proposed action if it is implemented;
(6) Mitigation measures proposed to minimize the environmental impact; and
(7) The growth-inducing aspects of the proposed action.
Source: SL 1974, ch 245, § 2; SDCL Supp, § 11-1A-7; SL 1992, ch 254, § 76; SL 2011, ch 165, § 134.
34A-9-8. Circulation of draft statement for comment.
The draft statement shall be circulated for comment among other public agencies which have jurisdiction by law or special expertise with respect to any environmental impact involved and shall be made available for comment by relevant federal agencies and interested members of the public.
Source: SL 1974, ch 245, § 3; SDCL Supp, § 11-1A-8.
34A-9-9. Filing of impact statement and comments before taking action--Responses to comments.
The environmental impact statement, prepared pursuant to § 34A-9-4, together with the comments of public and federal agencies and members of the public, shall be filed with the office of the secretary and made available to the public at least thirty days prior to taking agency action on the proposal which is the subject of the environmental impact statement. Such a statement shall also include copies or a summary of the substantive comments received by the agency pursuant to § 34A-9-8, and the agency response to such comments.
Source: SL 1974, ch 245, §§ 2, 4; SDCL Supp, § 11-1A-9.
34A-9-10. Findings required as to compliance and actions to minimize environmental problems.
When an agency decides to carry out or approve an action which has been the subject of an environmental impact statement, it shall make an explicit finding that the requirements of this chapter have been met and that all feasible action will be taken to minimize or avoid environmental problems that are revealed in the environmental impact statement process.
Source: SL 1974, ch 245, § 5; SDCL Supp, § 11-1A-10.
34A-9-11. Impact statement not required if federal statement required.
To avoid duplication of effort and to promote consistent administration of federal and state environmental policies, the environmental impact statement required by this chapter need not be prepared with respect to actions for which a detailed statement is required to be prepared pursuant to the requirements of the National Environmental Policy Act of 1969 as amended to January 1, 2011, if the statement complies with the requirements of this chapter.
Source: SL 1974, ch 245, § 6; SDCL Supp, § 11-1A-11; SL 1993, ch 256, § 35; SL 2011, ch 165, § 135.
34A-9-12. Prospective application of chapter.
The requirements of this chapter do not apply to actions undertaken or approved before March 2, 1974.
Source: SL 1974, ch 245, § 7; SDCL Supp, § 11-1A-12; SL 2011, ch 165, § 136.
34A-9-12.1. Establishment of environmental impact statement preparation fund--Source of fund--Administration--Appropriation and expenditures.
There is hereby established in the state treasury a special revolving fund to be designated as the environmental impact statement preparation fund. This fund shall consist of all moneys from all lawful public and private sources including legislative appropriations, federal grants, gifts, fees received pursuant to § 34A-9-4, and interest on investments made on money in the fund. The fund shall be maintained separately for each environmental impact statement and be administered by the agency in order to retain consulting and professional services and to defray such other expenses as are reasonable and necessary in order to prepare the environmental impact statement. All fees assessed by the agency requiring the environmental impact statement under § 34A-9-4 shall be payable to the agency for deposit in the environmental impact statement preparation fund established pursuant to this section. Moneys may be deposited in the fund on an ongoing basis and this fund shall be expended for the purposes of chapter 34A-9 and shall be appropriated by the Legislature through the normal budget process.
Source: SL 1992, ch 254, § 78.
34A-9-13. Citation of chapter.
This chapter may be cited as the South Dakota Environmental Policy Act.
Source: SL 1974, ch 245, § 9; SDCL Supp, § 11-1A-13.
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.
34A-11-1
Public policy.
34A-11-1.1
Repealed.
34A-11-2
Definitions.
34A-11-3
Department designated as state agency under federal law.
34A-11-4
Functions of department and board.
34A-11-4.1
Executed.
34A-11-5
Cooperation with other agencies and groups.
34A-11-6
Acceptance of loans and grants.
34A-11-7
Employment of personnel.
34A-11-8
Rules identifying characteristics and listing hazardous wastes.
34A-11-9
Promulgation of rules governing hazardous wastes--Civil penalty for
violation.
34A-11-9.1 to 34A-11-9.3.
Transferred.
34A-11-10
Notification of hazardous waste activity required--Civil penalty for
violation.
34A-11-11
Complaint alleging violation--Investigation--Report--Enforcement
action.
34A-11-12
Facility permits required--Issuance, modification, revocation,
suspension, or denial--Term--Civil penalty for violation.
34A-11-12.1
Fees for applications, amendments, and renewals--Costs assessed--Schedule of costs and fees.
34A-11-13
Application for permits--Rules--Hearings.
34A-11-14
Terms and conditions of permits--Civil penalty for violation.
34A-11-15
Revocation, modification, or suspension of permit--Grounds.
34A-11-16
Inspection of facilities and records--Monitoring equipment--Reports.
34A-11-16.1
Annual fee for inspection and monitoring.
34A-11-17
Notice and order for correction of violation.
34A-11-18
Hearing on violation--Time for request--Notice--Action by board.
34A-11-19
Circuit court action against violator--Injunction.
34A-11-20
Repealed.
34A-11-21
Violations classified as felonies.
34A-11-22
Public access to information--Confidential information excepted--Disclosure of protected information as misdemeanor.
34A-11-23
Other rights to abate nuisances and pollution unaffected.
34A-11-24
Hazardous waste revolving fund--Administration--Use of funds.
34A-11-25
Disposal fee levied by state--Records.
34A-11-26
County or municipal disposal fee--Distribution of fee shares.
34A-11-1. Public policy.
It is the public policy of this state to regulate the control and generation, transportation, treatment, storage, and disposal of hazardous wastes to protect the public health, safety, and welfare, protect the environment, prevent pollution of air, water, soil, and other natural resources of this state, and prevent the creation of nuisances. It is the purpose of this chapter to enhance this public policy through a comprehensive regulatory program of hazardous waste management and to facilitate cooperation and coordination in that effort with federal, state, and local agencies.
Source: SL 1983, ch 262, § 1; SL 1984, ch 243, § 8; SL 1987, ch 260, § 1.
34A-11-1.1. Repealed by SL 2012, ch 215, § 32.
34A-11-2. Definitions.
Terms as used in this chapter mean:
(1) "Board," the Board of Minerals and Environment;
(2) "Department," the Department of Agriculture and Natural Resources;
(3) "Disposal," the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land, air, or water so that such hazardous waste or any constituent thereof may enter the environment, or be emitted into air, or discharged into any waters, including groundwaters;
(4) "Hazardous waste," a solid waste and combination of solid wastes, as defined in subdivision 34A-6-1.3(17), which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed but does not include radioactive materials regulated pursuant to chapter 34-21;
(5) "Hazardous waste management," the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous waste;
(6) "Hazardous waste management facility," any facility for the collection, source separation, storage, transportation, transfer, processing, treatment, recovery, or disposal of hazardous wastes, whether such facility is associated with facilities generating such wastes or otherwise;
(7) "Manifest," the form used for identifying the quantity, composition, and the origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage;
(8) "Person," any individual, partnership, limited liability company, firm, association, municipality, public or private corporation, subdivision, or agency of the state or the United States government, trust, estate, interstate body, or any other legal entity;
(9) "Secretary," secretary of the Department of Agriculture and Natural Resources;
(10) "Storage," the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste;
(11) "Treatment," any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to render such waste less hazardous or nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it less hazardous or nonhazardous.
Source: SL 1983, ch 262, § 2; SL 1984, ch 243, § 9; SL 1987, ch 29, § 21; SL 1989, ch. 306, §§ 1, 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 71; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-3. Department designated as state agency under federal law.
The Department of Agriculture and Natural Resources is designated as the agency for all state purposes of the Federal Resource Conservation Recovery Act as amended to January 1, 2011, and the Hazardous and Solid Waste Amendments of 1984 (Public Law 98-616), as amended to January 1, 2011.
Source: SL 1983, ch 262, § 3; SL 1986, ch 295, § 31; SL 2011, ch 165, § 145; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-4. Functions of department and board.
The Department of Agriculture and Natural Resources shall perform all the functions of the former public health advisory committee, the former state health officer, and the Department of Health with respect to the control of hazardous waste management pursuant to this chapter. However, the Board of Minerals and Environment shall perform any quasi-legislative, quasi-judicial, advisory, and special budgetary functions.
Source: SL 1983, ch 262, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-5. Cooperation with other agencies and groups.
The Department of Agriculture and Natural Resources may advise, consult, and cooperate with other agencies of the state, other states, the federal government, and affected groups and industries in the formulation of plans for, and implementation of, hazardous waste management.
Source: SL 1983, ch 262, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-6. Acceptance of loans and grants.
The Department of Agriculture and Natural Resources may accept and administer any loans and grants from the federal government or other sources which are made available to the Department for Hazardous Waste Management.
Source: SL 1983, ch 262, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-7. Employment of personnel.
In accordance with the laws of the state, the Department of Agriculture and Natural Resources may employ, compensate, and prescribe the powers and duties of those persons necessary to execute the provisions of this chapter.
Source: SL 1983, ch 262, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-8. Rules identifying characteristics and listing hazardous wastes.
The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, which identify the characteristics of hazardous wastes considering the toxicity, persistence, degradability in nature, potential for accumulation in tissue, flammability, corrosiveness, reactivity, and related factors. The board shall compile a list of wastes it considers hazardous and may revise that list from time to time.
Source: SL 1983, ch 262, § 8; SL 1984, ch 243, § 10.
34A-11-9. Promulgation of rules governing hazardous wastes--Civil penalty for violation.
The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, governing the generation, transportation, treatment, storage, and disposal of hazardous wastes necessary to execute the provisions of this chapter. The rules may include ownership, location, design, construction, operation, and maintenance of hazardous waste management facilities, financial responsibility, personnel training, record keeping, reporting, labeling, monitoring, container use, inspections, closure, post-closure procedures and requirements, contingency planning, enforcement, and use of a manifest system to assure all hazardous wastes are designated for treatment, storage, or disposal at a permitted hazardous waste management facility. The board may promulgate rules pursuant to chapter 1-26 that are consistent with the Hazardous Materials Transportation Act (88 Stat. 2156; 49 U.S.C. § 1801 et seq.), as amended to January 1, 2011, and the regulations adopted pursuant to that Act.
A violation of the rules adopted pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SL 1983, ch 262, § 9; SL 1984, ch 243, § 11; SL 1992, ch 158, § 51; SL 2011, ch 165, § 146.
34A-11-10. Notification of hazardous waste activity required--Civil penalty for violation.
Any person generating, transporting, treating, storing, or disposing of a hazardous waste shall file with the secretary of agriculture and natural resources a notification of hazardous waste activities. The notification shall be in accordance with rules promulgated pursuant to chapter 1-26 by the Board of Minerals and Environment. No hazardous waste subject to this chapter may be transported, treated, stored, or disposed of unless notification has been given as required in this chapter.
A violation of this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SL 1983, ch 262, § 10; SL 1992, ch 158, § 52; SL 1993, ch 256, § 36; SL 2005, ch 10, § 27; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-11. Complaint alleging violation--Investigation--Report--Enforcement action.
Any person may file a complaint with the secretary of agriculture and natural resources regarding a violation of this chapter. The secretary may conduct an investigation of the alleged violation and make a written report of the investigation to the person. If the secretary determines that a violation has occurred, the secretary may take whatever enforcement action he or she considers appropriate.
Source: SL 1983, ch 262, § 11; SL 2005, ch 10, § 28; SL 2011, ch 165, § 147; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-12. Facility permits required--Issuance, modification, revocation, suspension, or denial--Term--Civil penalty for violation.
No hazardous waste treatment, storage, or disposal management facility may be owned, constructed, modified, or operated except in accordance with a permit issued by the Board of Minerals and Environment. A violation of this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
The board may issue, modify, suspend, revoke, or deny permits, in accordance with chapter 1-26, for the ownership, construction, modification, and operation of hazardous waste treatment, storage, and disposal management facilities. Any permit granted by the board under this section is initially valid for two years from the date of issuance and may be renewed for periods of five years.
Source: SL 1983, ch 262, § 12; SL 1990, ch 289, § 1; SL 1992, ch 158, § 53.
34A-11-12.1. Fees for applications, amendments, and renewals--Costs assessed--Schedule of costs and fees.
The department shall assess an initial application fee of fifty thousand dollars for the processing of all hazardous waste disposal facility applications. The department shall assess a fee of twenty-five thousand dollars for the processing of all hazardous waste disposal facility amendments and renewals. The applicant shall pay the fee upon the filing of an application, amendment, or renewal for a hazardous waste disposal facility. In addition to this fee, the department may assess the applicant those amounts in excess of the initial filing fee for expenses associated with processing the application, amendment, or renewal. The department shall provide the applicant with an itemized statement of all costs associated with the processing of the application, amendment, or renewal. The applicant shall submit payment of all costs in excess of the initial fee within thirty days of the receipt of the statement. The combined initial fee and additional expenses assessed an applicant may not exceed one hundred seventy-five thousand dollars. All fees assessed under this section shall be payable to the Department of Agriculture and Natural Resources for deposit in the hazardous waste revolving fund established pursuant to § 34A-11-24. The incineration or thermal destruction of hazardous waste shall be considered disposal for the purpose of this section.
Source: SL 1990, ch 289, § 2; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-13. Application for permits--Rules--Hearings.
The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, governing the application for permits to own, construct, modify, or operate a hazardous waste treatment, storage, or disposal facility. The rules may require the submission of plans, specifications, and other information as may be necessary to execute the provisions of this chapter. The board may promulgate rules allowing the issuance or denial of a permit by the Department of Agriculture and Natural Resources following notice and opportunity for a hearing before the board on the department's proposed decision.
Source: SL 1983, ch 262, § 13; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-14. Terms and conditions of permits--Civil penalty for violation.
Any permit issued pursuant to this chapter may prescribe terms and conditions for record keeping, reporting, monitoring, sampling, inspections, compliance schedules, and such other terms and conditions as may be necessary to ensure compliance with this chapter and rules adopted pursuant to this chapter. A violation of the terms of the permit is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SL 1983, ch 262, § 14; SL 1992, ch 158, § 54.
34A-11-15. Revocation, modification, or suspension of permit--Grounds.
Any permit issued pursuant to this chapter may be revoked, modified, or suspended, in whole or in part, during its term for cause, including the following:
(1) Violation of any condition of the permit;
(2) Obtaining a permit by misrepresenting or failing to disclose fully all relevant facts; or
(3) A change in condition or discovery of new information which requires a temporary or permanent reduction, or termination of the permitted activity.
Source: SL 1983, ch 262, § 15; SL 2011, ch 165, § 148.
34A-11-16. Inspection of facilities and records--Monitoring equipment--Reports.
The secretary of agriculture and natural resources may:
(1) Enter and have access at reasonable times to any facility used for generation, transportation, treatment, storage, or disposal of hazardous waste and monitoring equipment related thereto;
(2) Inspect and obtain samples from any person of any hazardous wastes or suspected hazardous wastes, and of any containers or labeling for such wastes; a receipt for any samples and a copy of any analysis performed shall be provided to the owner or operator;
(3) Inspect and copy any records relating to any known or suspected or hazardous wastes;
(4) Require the installation and use of monitoring equipment or methods necessary to ensure compliance with this chapter;
(5) Require the preparation and submission of reports or other information by any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes.
Source: SL 1983, ch 262, § 16; SL 2005, ch 10, § 29; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-16.1. Annual fee for inspection and monitoring.
The department shall assess an annual fee of twenty-five thousand dollars for the inspection, investigation, and monitoring of each hazardous waste disposal facility disposing of more than five hundred tons of hazardous waste per annum. The fee shall be payable to the department one year from the date of the issuance of the permit of the facility and on that same date each year thereafter until operations under the permit cease and the facility is properly closed with the exception of those years where a facility has made application for renewal and paid the required renewal application fee. The department shall deposit the fee in the hazardous waste revolving fund established pursuant to § 34A-11-24. The incineration or thermal destruction of hazardous wastes shall be considered disposal for the purpose of this section.
Source: SL 1990, ch 289, § 3.
34A-11-17. Notice and order for correction of violation.
If the secretary of agriculture and natural resources determines that a person is in violation of this chapter, or any rule promulgated pursuant to this chapter, the secretary may cause written notice and an order to be served personally or by mail upon the alleged violator or the alleged violator's agent. The notice and order shall state the statute or rule allegedly violated, the pertinent facts, the nature of any corrective action that may be required and the time within which the action is to be taken. A notice and order may include a suspension or revocation of a permit issued under this chapter. For purposes of this chapter, service by mail is considered complete on the date of mailing.
Source: SL 1983, ch 262, § 17; SL 2005, ch 10, § 30; SL 2011, ch 165, § 149; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-18. Hearing on violation--Time for request--Notice--Action by board.
The notice of violation and order is final thirty days after the order is served unless the person named submits a written request for hearing to the secretary of agriculture and natural resources before the thirtieth day. If a request is submitted by mail, it is considered to have been submitted on the date of mailing. The secretary shall notify the Board of Minerals and Environment of receipt of a request for a hearing. The board shall conduct a public hearing. Notice of the hearing consistent with § 1-26-17 shall be sent to the alleged violator and published in a newspaper of general circulation in the county where the violation is alleged to have occurred. The board may affirm, reverse, or modify the notice of violation or order following a contested case hearing.
Source: SL 1983, ch 262, § 18; SL 2005, ch 10, § 31; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-19. Circuit court action against violator--Injunction.
In lieu of, or in addition to, issuance of a notice of violation and order, the secretary of agriculture and natural resources may bring an action in the circuit court of the county where the violation occurred, or is threatening to occur, for injunctive or other appropriate relief.
Source: SL 1983, ch 262, § 19; SL 2021, ch 1 (Ex. Ord. 21-3), § 63, eff. Apr. 19, 2021.
34A-11-21. Violations classified as felonies.
Any person who knowingly transports a hazardous waste to an unpermitted facility; who knowingly treats, stores, or disposes of hazardous waste without a permit or in violation of a permit term or condition; or who makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or used for purposes of ensuring compliance with this chapter is guilty of a Class 4 felony.
Source: SL 1983, ch 262, § 21.
34A-11-22. Public access to information--Confidential information excepted--Disclosure of protected information as misdemeanor.
Any records, reports, or information obtained from any person under this chapter shall be available to the public. If the secretary of agriculture and natural resources determines that a record, report, or information reveals methods or processes entitled to protection as trade secrets, the secretary may consider such record, report, or information confidential. However, the record, report, or information may be disclosed to other officers, employees, or authorized representatives of the state or federal government concerned with executing the provisions of this chapter, or if relevant, in any proceeding under this chapter. Any person who knowingly and willfully divulges or discloses any information entitled to protection under this section is guilty of a Class 1 misdemeanor.
Source: SL 1983, ch 262, § 22; SL 2005, ch 10, § 32; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-23. Other rights to abate nuisances and pollution unaffected.
Nothing in this chapter abridges or alters any rights of action or remedies in equity or under the common law or statutory law, criminal or civil. Nothing in this chapter may be construed as estopping any person in the exercise of the person's rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.
Source: SL 1983, ch 262, § 23; SL 2011, ch 165, § 150.
34A-11-24. Hazardous waste revolving fund--Administration--Use of funds.
There is hereby established in the state treasury a special revolving fund to be designated as the hazardous waste revolving fund. This fund shall consist of all moneys from all lawful public and private sources including legislative appropriations, federal grants, gifts, fees received pursuant to §§ 34A-11-12.1 and 34A-11-16.1 and interest on investments made on money in the fund. The fund shall be maintained separately and be administered by the Department of Agriculture and Natural Resources in order to retain consulting and legal services and to defray such other expenses as are reasonable and necessary in order to process applications for hazardous waste disposal facilities and to monitor their operations. Fees not expended on a facilities application or monitoring shall remain a part of the fund but may not be expended for any purpose except the investigation and inspection of hazardous waste management facilities or the processing of hazardous waste management facilities permit applications or modifications. Moneys may be deposited in this fund on an ongoing basis and this fund shall constitute a continuing appropriation of these moneys to be expended for the purposes of §§ 34A-11-12.1 and 34A-11-16.1.
Source: SL 1990, ch 289, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-11-25. Disposal fee levied by state--Records.
Because of the additional environmental risks attending hazardous waste disposal facilities, a hazardous waste disposal fee of fifty dollars per ton or part thereof of any hazardous waste is hereby levied and imposed upon the disposal of hazardous waste at any hazardous waste disposal facility permitted under this chapter, excluding the disposal of hazardous waste disposed of in a process of energy recovery. The fee imposed by this section shall be in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of a hazardous waste disposal facility. The incineration or thermal destruction of hazardous waste shall be considered disposal for the purpose of this fee.
The hazardous waste disposal fee imposed by this section shall be paid by the owner of the hazardous waste disposal facility and remitted to the state treasury. The obligation of the owner to pay the fee accrues at the time hazardous waste is disposed of at a hazardous waste disposal facility. The fee imposed by this section shall be payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on such form or forms as may be prescribed by the secretary of revenue. Each owner of a facility who is required to pay the fee imposed by this section shall keep complete and accurate records in such form as the board or the secretary of revenue, by rules promulgated pursuant to chapter 1-26, may require.
Fees collected under this section shall be deposited in the South Dakota environment and water resources trust fund established pursuant to § 46A-1-82.
Source: SL 1990, ch 289, § 5.
34A-11-26. County or municipal disposal fee--Distribution of fee shares.
In addition to the hazardous waste disposal fee assessed by the state under § 34A-11-25, a county or municipality may impose and levy a hazardous waste disposal fee upon the disposal of hazardous waste at any hazardous waste disposal facility within, or operated under, its jurisdiction excluding those facilities disposing of hazardous waste in a process of energy recovery. Fees imposed under this section are in addition to all other fees and taxes levied by law. The incineration or thermal destruction of hazardous waste is considered disposal for the purpose of this fee.
The fee imposed by this section shall be paid by the owner of the hazardous waste disposal facility and remitted to the county or municipal treasurer. The obligation of the owner to pay the fee accrues at the time hazardous waste is disposed of at a hazardous waste disposal facility. The owner of the facility may collect these fees from persons disposing of hazardous waste at the owner's facility. The fee imposed by this section is payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on forms prescribed by the county or municipal treasurer. Each person required to pay the fee imposed by this section shall keep complete and accurate records in a form required by the county or municipal treasurer.
The county or municipality may distribute shares of this fee to the municipalities and school districts within its boundary as it deems appropriate considering the location of the facility and the impacts on the representation jurisdiction.
Source: SL 1990, ch 289, § 6; SL 2011, ch 165, § 151.
CHAPTER 34A-12
REGULATED SUBSTANCE DISCHARGES
34A-12-1 Definition of terms.
34A-12-2 Repealed
34A-12-3 Regulated substance response fund established--Purpose--Source of funds--Continuous appropriation--Informational budget--Annual legislative review.
34A-12-3.1 Subfund created--Disbursement and use of funds.
34A-12-3.2 34A-12-3.2. Repealed by SL 1999, ch 182, § 1.
34A-12-4 Expenditure of funds by secretary--Grounds for expenditures.
34A-12-5 Department to perform administrative functions and corrective actions--Disbursements.
34A-12-6 Civil action by department for corrective action costs--Recovery of other costs.
34A-12-7 Promulgation of rules--List of regulated substances.
34A-12-8 Discharge of regulated substance prohibited--Exception.
34A-12-9 Report of discharge--Rules for reporting.
34A-12-10 Order to take corrective action--Injunctive action--Cease and desist order.
34A-12-11 Injunctive action for emergency remedial efforts.
34A-12-12 Strict liability for costs of corrective action.
34A-12-13 Corrective action costs as lien--Filing of notice of lien--Contents--Attachment--Priority.
34A-12-13.1 Authority to establish and enforce remediation requirements.
34A-12-14 Additional remedies.
34A-12-15 Deposit of certain moneys in response fund.
34A-12-16 Determination of person responsible for discharge.
34A-12-17 34A-12-17. Transferred to § 34A-2-71.1.
34A-12-18 34A-12-18 to 34A-12-24. Transferred to §§ 1-50-5 to 1-50-11.
34A-12-1. Definition of terms.
Terms used in §§ 23A-27-25, 34A-1-39, 34A-12-1 to 34A-12-15, inclusive, 38-20A-9, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68 mean:
(1) "Corrective action," any action taken to minimize, contain, eliminate, remediate, mitigate, and clean up a discharge, including any necessary emergency remedial action;
(2) "Corrective action cost," any cost incurred by the department in the investigation of a discharge; removal, attempted removal, emergency remedial efforts, and corrective actions performed on a discharge; or the performance of reasonable measures undertaken to prevent or mitigate damage to the public health, safety, welfare, or environment of the state;
(3) "Department," the Department of Agriculture and Natural Resources;
(4) "Discharge," an intentional or unintentional act or omission which results in the release, spill, leak, emission, escape, or disposal of a regulated substance into the environment and which harms or threatens harm to public health or safety or the environment. The term excludes any discharge made in compliance with the conditions of a federal or state permit;
(5) "Emergency remedial effort," any action taken to protect the public health, safety, or the environment from imminent danger resulting from a discharge, and any action taken to contain a discharge which, if not contained, will in time pose a greater threat to the public health, safety, or the environment than if such action is not immediately taken;
(6) "Environment," land, including public and private property, surface and underground waters, fish, wildlife, biota, air, and other such resources within the state;
(7) "Person," public or private corporations, companies, associations, societies, firms, limited liability companies, partnerships, cooperatives, joint stock companies, individuals, the United States, this state and any of its political subdivisions and agencies, and any other state;
(8) "Regulated substance," the compounds designated by the department under §§ 23A-27-25, 34A-1-39, 34A-6-1.3(17), 34A-11-9, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68, including pesticides and fertilizers regulated by the Department of Agriculture and Natural Resources; the hazardous substances designated by the Federal Environmental Protection Agency pursuant to section 311 of the Federal Water Pollution Control Act and Clean Water Act (33 United States Code sections 1251 to 1387, inclusive), as amended to January 1, 2011; the toxic pollutants designated by Congress or the Federal Environmental Protection Agency pursuant to section 307 of the Toxic Substances Control Act (15 United States Code sections 2601 to 2671, inclusive), as amended to January 1, 2011; the hazardous substances designated by the Federal Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (42 United States code sections 9601 to 9675, inclusive), as amended to January 1, 2011; and petroleum, petroleum substances, oil, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, substances, or additives to be utilized in the refining or blending of crude petroleum or petroleum stock, and any other oil or petroleum substance. This term does not include sewage and sewage sludge;
(9) "Response fund," the regulated substance response fund established by § 34A-12-3;
(10) "Responsible person," a person who has caused a discharge of a regulated substance, or a person who is an owner or operator of a tank at any time during or after a discharge;
(11) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(12) "Tank," any one or a combination of containers, vessels, and enclosures, including structures and appurtenances connected to them, that is, or has been, used to contain or dispense a regulated substance which is either stationary or attached to a motor vehicle. This includes pipeline facilities which transport and store regulated substances. Facilities used exclusively for natural gas and liquified natural gas storage and transport are not included as part of §§ 23A-27-25, 34A-1-39, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68.
Source: SL 1988, ch 291, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 72; SL 1995, ch 120, § 2; SL 2011, ch 165, § 152; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 51, 53, eff. Apr. 19, 2021.
34A-12-3. Regulated substance response fund established--Purpose--Source of funds--Continuous appropriation--Informational budget--Annual legislative review.
There is hereby established in the state treasury an operating fund to be known as the regulated substance response fund for the purpose of providing funds for the clean up of regulated substance discharges. Funds from the following sources shall be deposited into the response fund:
(1) Direct appropriations to the response fund from the general fund;
(2) Money, other than criminal fines assessed in criminal actions, recovered by the state in any action or administrative proceeding based upon violation of the state's environmental statutes or upon damage to the environment, including actions for administrative expense recoveries, civil penalties, compensatory damages, and money paid pursuant to any agreement, stipulation, or settlement in such actions or proceedings;
(3) Interest attributable to investment of the money in the response fund;
(4) Money received by the department in the form of gifts, grants, reimbursements, or appropriations from any source intended to be used for the purposes of the response fund.
All money in the response fund is continuously appropriated for the purposes specified in § 34A-12-4. All money received by the department for the response fund shall be set forth in an informational budget pursuant to § 4-7-7.2 and be annually reviewed by the Legislature.
Source: SL 1988, ch 291, § 4; SL 2021, ch 163, § 6.
34A-12-3.1. Subfund created--Disbursement and use of funds.
A subfund of the regulated substances response fund is hereby created for recovered leaking underground storage tank trust fund moneys. The subfund shall be separately maintained and administered in the manner required by the Superfund Amendments and Reauthorization Act of 1986 as amended as of January 1, 2011. Moneys deposited in the subfund may be disbursed and used only for the purposes authorized under subtitle I of the Resources Conservation Recovery Act as amended to January 1, 2011.
Source: SL 1990, ch 283, § 4; SL 2011, ch 165, § 153.
34A-12-4. Expenditure of funds by secretary--Grounds for expenditures.
When necessary in the performance of the secretary's duties under §§ 23A-27-25, 34A-1-39, 34A-2-75, 34A-6-1.4, 34A-6-1.31, 34A-11-9, 34A-11-10, 34A-11-12, 34A-11-14, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68 and Title 34A relative to discharges, the secretary may expend funds from the response fund to provide for the costs of investigations, emergency remedial efforts, corrective actions, and managerial or administrative activities associated with such activities. The secretary's use of the response fund shall be based upon the following:
(1) In the case of an investigation, when the secretary determines that a discharge requiring an emergency remedial effort may have occurred and that the general operating budget of the department for such purposes is not adequate to cover the costs of the necessary investigatory activities;
(2) In the case of an emergency remedial effort, when the secretary determines that a discharge has occurred and that corrective actions shall be immediately undertaken to protect an imminent threat to the public health or safety or to contain a discharge which, if not immediately contained, shall in time pose a significantly greater threat to public health or safety or to the environment of this state than if such action is not immediately taken;
(3) In the case of a discharge not of an emergency nature when the secretary determines that a discharge has occurred, that a responsible party or liability fund capable of performing the corrective actions either cannot be identified or refuses to undertake corrective actions, and that corrective actions shall be undertaken to protect the public health, safety, welfare, or environment of the state.
Source: SL 1988, ch 291, § 5; SL 1992, ch 158, § 55A; SL 1999, ch 182, § 3.
34A-12-5. Department to perform administrative functions and corrective actions--Disbursements.
The department shall perform all administrative functions relative to the response fund and corrective actions funded by it. Disbursements from the response fund shall be on warrants drawn by the state auditor pursuant to vouchers approved by the secretary.
Source: SL 1988, ch 291, § 6.
34A-12-6. Civil action by department for corrective action costs--Recovery of other costs.
The department may bring an action in circuit court against the responsible person to obtain reimbursement for corrective action costs expended from the response fund pursuant to §§ 23A-27-25, 34A-1-39, 34A-2-75, 34A-6-1.4, 34A-6-1.31, 34A-11-9, 34A-11-10, 34A-11-12, 34A-11-14, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68. The secretary may seek recovery of other funds expended by the department as a result of a discharge through actions brought under the provisions of Title 34A.
Source: SL 1988, ch 291, § 7; SL 1992, ch 158, § 55A.
34A-12-7. Promulgation of rules--List of regulated substances.
The secretary shall promulgate rules pursuant to chapter 1-26 to provide for a list of regulated substances whose discharge harms, or threatens harm to, the public health, safety, welfare, or natural resources of the state.
Source: SL 1988, ch 291, § 8.
34A-12-8. Discharge of regulated substance prohibited--Exception.
The discharge of a regulated substance is prohibited. This section does not apply to discharges of regulated substances pursuant to and in compliance with the conditions of a federal or state permit.
Source: SL 1988, ch 291, § 9.
34A-12-9. Report of discharge--Rules for reporting.
Any person who has caused a discharge of a regulated substance shall immediately report the discharge to the department. The department may promulgate rules pursuant to chapter 1-26 to provide for the procedures to be followed in reporting a discharge.
Source: SL 1988, ch 291, § 10.
34A-12-10. Order to take corrective action--Injunctive action--Cease and desist order.
If a discharge in violation of § 34A-12-8 has occurred, or the department has reason to believe that a discharge in violation of § 34A-12-8 has occurred, the department shall order the responsible person to take corrective action concerning the discharge within a specified time. If the responsible person fails to comply with the department's order, the department may file an injunctive action in the circuit court of the county wherein the discharge has occurred seeking such corrective action. If the discharge occurs at any operation permitted under Title 34A or 45 and constitutes a violation of such permit, the department may order the operation to cease and desist further activity for the duration of the corrective action.
Source: SL 1988, ch 291, § 11.
34A-12-11. Injunctive action for emergency remedial efforts.
The department may file an action in circuit court for preliminary and permanent injunctive relief whenever the secretary determines emergency remedial efforts are necessary to prevent, contain, control, or mitigate a discharge.
Source: SL 1988, ch 291, § 12.
34A-12-12. Strict liability for costs of corrective action.
Any person who has caused a discharge of a regulated substance in violation of § 34A-12-8 is strictly liable for the corrective action costs expended by the department pursuant to §§ 23A-27-25, 34A-1-39, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68.
Source: SL 1988, ch 291, § 13.
34A-12-13. Corrective action costs as lien--Filing of notice of lien--Contents--Attachment--Priority.
All corrective action costs expended pursuant to §§ 23A-27-25, 34A-1-39, 34A-2-75, 34A-6-1.4, 34A-6-1.31, 34A-11-9, 34A-11-10, 34A-11-12, 34A-11-14, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68 shall constitute a lien on all property owned by the responsible person when a notice of lien is filed with the register of deeds in the county in which such property is located. The notice of lien shall contain a description of the property of the responsible person upon which the lien is made, a description of the property upon which corrective action or emergency remedial efforts were made, and a statement of the corrective action costs expended from the response fund. Upon entry, the lien shall attach to all real property of the responsible person. The lien has priority over all other claims or liens on the property, except those which had been perfected prior to the department's filing of the notice of lien.
Source: SL 1988, ch 291, § 14; SL 1992, ch 158, § 55A.
34A-12-13.1. Authority to establish and enforce remediation requirements.
Nothing in this chapter limits the authority of the department to establish environmental standards for remediation of air, soil, or water pollution pursuant to Title 34A, or to enforce site specific environmental remediation requirements in particular cases. This section does not limit the fund's authority to determine what constitutes reasonable and necessary expense in a corrective action.
Source: SL 1992, ch 260, § 25.
34A-12-14. Additional remedies.
Nothing in §§ 23A-27-25, 34A-1-39, 34A-2-75, 34A-6-1.4, 34A-6-1.31, 34A-11-9, 34A-11-10, 34A-11-12, 34A-11-14, 34A-12-1 to 34A-12-15, inclusive, 38-20A-9, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68 precludes the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department or any other person. Administrative remedies need not be exhausted in order to proceed under §§ 23A-27-25, 34A-1-39, 34A-12-1 to 34A-12-15, inclusive, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68. The remedies provided by §§ 23A-27-25, 34A-1-39, 34A-12-1 to 34A-12-15, inclusive, 38-20A-9, 45-6B-70, 45-6C-45, 45-6D-60, and 45-9-68 are in addition to those provided by existing statutory or common law.
Source: SL 1988, ch 291, § 15; SL 1992, ch 158, § 55A.
34A-12-15. Deposit of certain moneys in response fund.
All money collected by the department in the enforcement of the provisions of Titles 34A and 45, or in any other action, proceeding or settlement based upon damage to the environment or a violation of the state's environmental laws, excluding criminal proceedings for criminal fines, shall be deposited into the response fund.
Source: SL 1988, ch 291, § 16.
34A-12-16. Determination of person responsible for discharge.
If the department has determined that a discharge has occurred, the department shall conduct an investigation to determine the responsible person. The investigation may include a title search of the affected property and shall attempt to designate as the responsible person the person deemed to be the most responsible for the occurrence of the discharge. If the identity of the person who caused the discharge can be determined, that person shall be designated as the responsible person. If the identity of the person who caused the discharge cannot be determined, the owner of the property or operator of the tank at the time of the discharge shall be designated as the responsible person. If the person deemed responsible for the discharge contests the department's decision, a title search of the affected property shall be done.
Source: SL 1989, ch 309, § 1; SL 1990, ch 290, § 1.
CHAPTER 34A-13
PETROLEUM INSPECTION AND RELEASE COMPENSATION
34A-13-1 Definition of terms.
34A-13-2 34A-13-2, 34A-13-3. Repealed by SL 2013, ch 166, §§ 33, 34.
34A-13-4 Immediate corrective action by department.
34A-13-5 Response procedure--Promulgation of rules.
34A-13-6 34A-13-6. Repealed by SL 2013, ch 166, § 35.
34A-13-7 Furnishing of information to director--Denial of benefits based on failure to furnish information.
34A-13-8 Examination of records--Entering upon public or private property--Denial of benefits based upon failure to allow access to property and documents.
34A-13-8.1 Reimbursement by fund for corrective action costs--Limitation--Costs for releases.
34A-13-8.2 Percentage of deductible waived for certain releases.
34A-13-8.3 Limitation on reimbursement for release sites.
34A-13-8.4 Defense costs of certain third-party claims.
34A-13-8.5 Reimbursement to covered party.
34A-13-9 Cost of corrective action--Amount of reimbursement--Exceptions.
34A-13-9.1 Conditions for reimbursement.
34A-13-9.2 Subrogation of fund--Right to recover.
34A-13-10 Avoidance of liability by conveyance or agreement prohibited--Exceptions.
34A-13-11 Recovery of expenses in civil action--Prima facie evidence of reasonable expenses--Disposition of recovered funds.
34A-13-12 Administrative, civil, injunctive, and criminal remedies allowed where pursued by department--Exhaustion of administrative remedies not required.
34A-13-12.1 Remedies allowed--Administrative exhaustion not required.
34A-13-13 34A-13-13. Repealed by SL 2013, ch 166, § 37.
34A-13-14 Repealed.
34A-13-15 Employment of staff--Costs and appropriations--Delegation of authority.
34A-13-16 Practices and procedures--Promulgation of rules.
34A-13-16.1 Training and testing of persons who perform services to be reimbursed.
34A-13-17 Attachment of fund to Department of Agriculture and Natural Resources--Reimbursement of costs.
34A-13-18 Deposit and crediting of revenue.
34A-13-19 34A-13-19. Repealed by SL 1993, ch 48, § 19.
34A-13-20 Petroleum release compensation and tank inspection fee--Amount of fee--Allocation of revenue.
34A-13-20.1 Transfer of funds to and from state highway fund.
34A-13-21 34A-13-21. Repealed by SL 2013, ch 166, § 38.
34A-13-22 Monthly fee--Promulgation of rules.
34A-13-23 Audits of persons subject to fee.
34A-13-24 Failure to pay fee as misdemeanor--Subsequent violation as felony.
34A-13-25 Notice of suspension of benefits--Notice to department--Appeal for reinstatement of benefits--Ratification of certain suspensions and reinstatements.
34A-13-26 Administration of provisions--Hearing waiver.
34A-13-27 Fund expenditures.
34A-13-28 34A-13-28 to 34A-13-30. Repealed by SL 1992, ch 260, §§ 21 to 23.
34A-13-31 Determination of cost--Petroleum remediation requirements--Reduction for ineligible claims--Promulgation of rules.
34A-13-32 Continuous appropriation--Administrative budget submitted to Legislature.
34A-13-33 Liability of covered party not limited by reimbursement.
34A-13-34 Third party cleanup reimbursement--Department and fund--No legal process or attachment.
34A-13-35 34A-13-35. Repealed by SL 1992, ch 260, § 27.
34A-13-36 34A-13-36. Repealed by SL 1990, ch 292, § 22.
34A-13-37 34A-13-37. Repealed by SL 2013, ch 166, § 40.
34A-13-38 34A-13-38. Repealed by SL 1991, ch 294, § 20.
34A-13-39 Short title.
34A-13-40 Limits of reimbursement--Promulgation of rules.
34A-13-41 Reimbursement to licensed petroleum marketers and other tank owners--Promulgation of rules.
34A-13-42 Rules for amount, terms, and period of third-party reimbursement.
34A-13-43 34A-13-43. Repealed by SL 1992, ch 260, § 30.
34A-13-44 34A-13-44. Repealed by SL 2013, ch 166, § 41.
34A-13-44.1 Third-party damages--Benefits intended in or on behalf of covered party.
34A-13-45 Damage prior to April 1, 1990.
34A-13-46 Tanks at abandoned sites.
34A-13-47 Time limit for third-party claim.
34A-13-48 Repealed.
34A-13-49 Abandoned tank removal program created--Eligibility for participation.
34A-13-50 Scope of program.
34A-13-51 34A-13-51. Repealed by SL 2001, ch 192, § 1.
34A-13-52 Department responsible for tank removal and corrective actions under program--Director to make payments from fund.
34A-13-53 Promulgation of rules.
34A-13-54 Director to suspend payments except at high-risk sites when fund balance is two million dollars or less.
34A-13-1. Definition of terms.
Terms used in this chapter mean:
(1) "Abandoned site," any release site on which none of the tanks have been used for the intentional storage of petroleum after April 1, 1988;
(2) "Asset value," with respect to valuation of amounts on deposit in or credited to any account or fund, the amount of cash on deposit in or credited to the account or fund plus the lesser of the cost or the face amount of any investments or other obligations on deposit in or credited to the account or fund;
(3) "Backfill area," the space containing the tank system and supporting material bounded by the ground surface, the sides and bottom of the pit, and the trenches into which the product lines for the tank system were placed at the time of installation;
(4) "Corrective action," a necessary and reasonable action taken pursuant to an approved plan to minimize, contain, eliminate, remediate, mitigate or clean up, or monitor a release, including remedial emergency measures as defined in the regulated substance cleanup act, but does not include any action taken in excess of minimum environmental standards established by the department;
(5) "Covered party," a responsible person, an employee of a responsible person, or any person having legal custody of a responsible person's real property;
(6) "Deductible," the ten thousand dollars, or lesser amount established by the secretary of the department, as an exclusion from reimbursable costs incurred in a corrective action;
(7) "Department," the Department of Agriculture and Natural Resources;
(8) "Director," the director of the petroleum release compensation fund;
(9) "Petroleum marketer," any person licensed by the Department of Revenue to sell motor fuels, special fuels, or distillates of petroleum within the state;
(10) "Fund," the petroleum release compensation fund;
(11) "Occurrence," any release which is discovered and identified within a twelve-month period and known to have originated from a release site;
(12) "Operator," any person in control of, or having responsibility for, the operation of a tank;
(13) "Owner," any person who holds title to, controls, or possesses any interest in a tank. However, the term does not include a person who holds an interest in a tank solely for financial security, unless, through foreclosure or other related actions, the holder of a security interest has taken possession or control of the tank;
(14) "Person," any individual, partnership, association, public or private corporation, or other legal entity, including the United States government, an interstate commission or other body, the state, or any agency, board, bureau, office, department, or political subdivision of the state;
(15) "Petroleum," gasoline, alcohol blended fuels, diesel fuels, aviation gasoline, jet fuel, fuel oil, kerosene, and burner oil. Products that are specifically excluded from this definition include naphtha, lubricating oils, motor oil, automatic transmission fluid, waste oil, crude oil, oil sludge, oil refuse, and alcohols other than those that have been denatured with gasoline and stored to be used as blended fuel grade ethanol;
(16) "Reimburse," any payment made by the fund to a covered party, the covered party's assignee, or a service provider for work performed or materials supplied, as part of a corrective action or third-party claim;
(17) "Release," any unintentional spilling, leaking, emitting, discharging, escaping, leaching, or disposing of petroleum from a tank into the environment occurring in South Dakota, but does not include discharges or designed venting allowed under adopted rules or under federal or state law or discharges arising out of war, invasion, act of a foreign enemy, hostilities, revolution, earthquake, flood, or other catastrophic disaster occurring due to nature;
(18) "Release site," one continuous property, not separated or divided by a public road or other commonly held boundary, on which the tank or tanks that are the source of the release are located as determined at the time of discovery of the release or as modified based upon subsequent assessment;
(19) "Responsible person," any person who is an owner or operator of a tank at any time during or after a release;
(20) "Service provider," any person providing a service to accomplish a corrective action, including consultants, environmental consultants, engineers, environmental engineers, contractors, excavators, landfill operators, materialmen, and any other person providing goods or services to a covered party pursuant to a written agreement;
(21) "Tank," any one or a combination of containers, vessels, and enclosures, including structures and appurtenances connected to them, that is, or has been, used to contain or dispense petroleum that is either stationary or attached to a motor vehicle. Any vessel or container, in order to be covered by this chapter, shall be used primarily or exclusively to contain petroleum. However, the term does not include any pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. chapter 24, or the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. chapter 29, as in effect on January 1, 1988, or any tank farms if title to the petroleum has not passed to a distributor licensed in South Dakota;
(22) "Tank pulling," the removal and disposal of backfill material and a tank, excluding the contents of the tank, and the removal and replacement of the surface above the backfill area; and
(23) "Upgrade," any improvement to a release site, including improvements to its fixtures, surface characteristics, and drainage when compared with the site prior to the corrective action, made before, during, or after a corrective action.
Source: SL 1988, ch 290, § 1; SL 1989, ch 310, § 1; SL 1990, ch 292, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1991, ch 294, § 1; SL 1992, ch 260, § 1; SL 1994, ch 351, § 73; SL 1995, ch 71, § 189; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 146, § 2.
34A-13-4. Immediate corrective action by department.
To assure an adequate response to a release, the director may take corrective action if the department determines that the release constitutes a clear and immediate danger requiring immediate action to prevent, minimize, or mitigate damage to the public health and welfare or the environment. Before taking any action pursuant to this section, the department shall make all reasonable efforts, taking into consideration the urgency of the situation, to order and permit a responsible person to take a corrective action and notify the owner of real property where the corrective action is to be taken.
Source: SL 1988, ch 290, § 4; SL 2021, ch 163, § 4.
34A-13-5. Response procedure--Promulgation of rules.
The department shall develop and adopt by rules promulgated pursuant to chapter 1-26, a response procedure for emergency and other corrective actions.
Source: SL 1988, ch 290, § 5; SL 2024, ch 146, § 3.
34A-13-7. Furnishing of information to director--Denial of benefits based on failure to furnish information.
Any person who the director has reason to believe is a covered party, or the owner of real property where corrective action is ordered to be taken, or any person who may have information concerning a release or a corrective action, shall, if requested by the director, furnish to the director any information that person has or may reasonably obtain that is relevant to the release. Failure on the part of the covered party to do so allows denial of benefits under this chapter pursuant to subdivision 34A-13-8.5(6).
Source: SL 1988, ch 290, § 7; SL 1991, ch 294, § 2; SL 1992, ch 260, § 3; SL 2011, ch 165, § 155.
34A-13-8. Examination of records--Entering upon public or private property--Denial of benefits based upon failure to allow access to property and documents.
The director may, upon presentation of official fund credentials:
(1) Examine and copy books, papers, records, memoranda, or data of any person who has a duty to provide information to the director under § 34A-13-7; and
(2) Enter upon public or private property for the purpose of taking action authorized by this section, including obtaining information from any person who has a duty to provide the information under § 34A-13-7, conducting surveys and investigations, and taking corrective action.
Failure by the covered party to allow access to the property and examination or copying of the documents authorized in this section allows denial of benefits under this chapter pursuant to subdivision § 34A-13-8.5(6).
Source: SL 1988, ch 290, § 8; SL 1991, ch 294, § 3; SL 1992, ch 260, § 4; SL 2011, ch 165, § 156.
34A-13-8.1. Reimbursement by fund for corrective action costs--Limitation--Costs for releases.
The fund may provide reimbursement of reasonable and necessary costs to an eligible covered party for an approved corrective action in excess of ten thousand dollars and not to exceed one million dollars for releases reported after April 1, 1988. Costs incurred for releases reported prior to April 1, 1988, are eligible for reimbursement only to the extent the costs were incurred after that date. Reimbursement to an eligible covered party may not exceed one million nine hundred ninety thousand dollars within any fiscal year as provided in § 4-10-10. Reimbursement may include costs of an approved corrective action and third-party claims for releases reported after April 1, 1990. Reimbursement may not exceed the reasonable and necessary costs of cleanup under the risk-based cleanup method approved by the water management board pursuant to subdivisions 34A-2-93(13) and 34A-2-99(4).
Source: SL 1992, ch 260, § 5; SL 1995, ch 204, § 3.
34A-13-8.2. Percentage of deductible waived for certain releases.
The department may waive any percentage it deems appropriate of the deductible if the release is reported after April 1, 1990, and is discovered as a result of an action designed to bring existing equipment into compliance with environmental legal requirements as set forth in §§ 34A-2-99 and 34A-2-101.
Source: SL 1992, ch 260, § 6; SL 2024, ch 146, § 4.
34A-13-8.3. Limitation on reimbursement for release sites.
Regardless of the number of releases involved, locations involved, covered parties involved, claims made, suits brought, or persons filing claims or bringing legal action, in no event may the amount of reimbursement for any release site exceed nine hundred ninety thousand dollars unless the director has determined a new occurrence has taken place and all claims for prior occurrences have been established or settled. The provisions of this chapter do not authorize the department to pay any exemplary and noneconomic damages, including damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, hedonic damages, or punitive damages on behalf of any covered party.
Source: SL 1992, ch 260, § 7; SL 2024, ch 146, § 5.
34A-13-8.4. Defense costs of certain third-party claims.
In addition to the amounts set forth in this chapter, the department shall provide the defense of third-party claims and all costs related thereto for claims of covered parties arising under this chapter, including attorneys' fees. However, the department may not provide the defense of third-party claims and costs relating thereto, including attorneys' fees, if the coverage limit under this section is exhausted by judgments, settlements, or corrective action costs prior to the commencement of a civil action by the third-party claimant against the covered party.
Source: SL 1992, ch 260, § 8; SL 2024, ch 146, § 6.
34A-13-8.5. Reimbursement to covered party.
Reimbursement from the fund may be made to a covered party only if:
(1) The department and fund were given notice of the release as provided by rule;
(2) At the time the release was discovered, the tank or other container was in substantial compliance with state rules and federal regulations applicable to the tank or other container;
(3) The tank was used primarily or exclusively to contain petroleum;
(4) The covered party applying to the fund, if subject to the tank inspection fee established in this chapter, has paid the fee and is current, or the petroleum involved in the release was supplied by a person who is subject to the tank inspection fee, or the release site is determined to be an abandoned site;
(5) The covered party has satisfied the deductible;
(6) The covered party is cooperating with the director and department in responding to the release;
(7) In a corrective action, the covered party has received funding approval for a site assessment plan from the director prior to incurring costs for the assessment except as provided in § 34A-13-9.1;
(8) In a corrective action, the covered party has conducted a site assessment, except as provided in § 34A-13-9.1;
(9) In a corrective action, the covered party has submitted a corrective action plan and the director has authorized funding prior to the incurring of costs under the plan except as provided in § 34A-13-9.1;
(10) In a corrective action, if the department has declared that an emergency exists and immediate abatement is necessary as provided in § 34A-13-4, even though the requirements of subdivisions (7), (8), and (9) of this section are not met until the factors causing the emergency have been addressed to the satisfaction of the department; and
(11) The covered party has submitted his claim on forms provided by the fund and has supplied the information in the manner required by the fund.
Source: SL 1992, ch 260, § 9.
34A-13-9. Cost of corrective action--Amount of reimbursement--Exceptions.
A responsible person is liable for the cost of the corrective action taken by the department, including the cost of investigating the release and administrative and legal expenses of the fund. This chapter does not create any new cause of action for damages on behalf of third parties for release of petroleum products against the fund, petroleum marketer, or covered parties. Reimbursement must be made to a covered party who qualifies pursuant to the criteria set forth in this chapter.
No reimbursement from the fund may be made to a covered party if:
(1) Corrective action has been taken in an emergency pursuant to § 34A-13-4, and the responsible person failed to report the existence of the emergency;
(2) The department has taken corrective action because a responsible person could not be identified or a tank has not been registered as required by law; or
(3) The conditions of § 34A-13-8.5 have not been met.
Source: SL 1988, ch 290, § 9; SL 1989, ch 310, § 2; SL 1990, ch 292, § 4; SL 1991, ch 294, § 4; SL 1992, ch 260, § 10; SL 1995, ch 71, § 190; SL 2013, ch 166, § 36; SL 2024, ch 146, § 7.
34A-13-9.1. Conditions for reimbursement.
Reimbursement, without a corrective action plan, may be allowed for tank pulling if petroleum contamination in the backfill area exceeds standards established by the department and if the tank pulling removes petroleum contamination to department standards. No reimbursement may be provided for upgrade of a release site taken during a corrective action.
Source: SL 1990, ch 292, § 2; SL 1992, ch 260, § 11; SL 2011, ch 165, § 157.
34A-13-9.2. Subrogation of fund--Right to recover.
The fund shall be subrogated to any insurer, risk retention group, or third-party payor. The fund has the right to recover, under any pollution liability insurance contract available to a covered party, any applicable contract involving the covered party, or from any tort-feasor liable to a covered party for a release or an intentional release, or any third-party payor and that right may not be waived by contract. In any action by the fund to recover under this section, the fund may recover all its costs and, in the discretion of the court, its reasonable attorney's fees involved in the action provided demand for payment has been made at least thirty days prior to commencement of an action. Demand for payment under this section shall stay the running of any statute of limitations for thirty days. This section applies to any claim filed after April 1, 1988.
Source: SL 1990, ch 292, § 5; SL 1992, ch 260, § 12.
34A-13-10. Avoidance of liability by conveyance or agreement prohibited--Exceptions.
No covered party may avoid liability by means of a conveyance of any right, title, or interest in real property; or by any indemnification, hold harmless agreement, or similar agreement.
However, the provisions of this chapter do not:
(1) Prohibit a person who may be liable from entering into an agreement by which the person is insured or is a member of a risk retention group, and is thereby indemnified for part or all of the liability;
(2) Prohibit the enforcement of an insurance, hold harmless, or indemnification agreement; or
(3) Bar a cause of action brought by a person who may be liable or by an insurer or guarantor, whether by right of subrogation or otherwise.
Source: SL 1988, ch 290, § 10; SL 1992, ch 260, § 13.
34A-13-11. Recovery of expenses in civil action--Prima facie evidence of reasonable expenses--Disposition of recovered funds.
Any reasonable and necessary expenses incurred by the fund in taking a corrective action, including costs of investigating a release, third-party claims, administrative and legal expenses including attorney's fees for prosecuting any action, and defense costs including attorney's fees for any claims, may be recovered in a civil action in circuit court brought by the director against a covered party. The certification of expenses by an approved agent of the fund is prima facie evidence that the expenses are reasonable and necessary. Any expenses that are recovered under this section shall be deposited in the fund.
Source: SL 1988, ch 290, § 11; SL 1990, ch 292, § 6; SL 1991, ch 294, § 5; SL 1992, ch 260, § 14.
34A-13-12. Administrative, civil, injunctive, and criminal remedies allowed where pursued by department--Exhaustion of administrative remedies not required.
Nothing in this chapter limits the powers of the department, or precludes the pursuit of any other administrative, civil, injunctive, or criminal remedies by the department. The department need not exhaust administrative remedies under this chapter in order to pursue any other legal remedy.
The remedies provided by this chapter are in addition to those provided under existing statutory or common law.
Source: SL 1988, ch 290, § 12; SL 1991, ch 294, § 6.
34A-13-12.1. Remedies allowed--Administrative exhaustion not required.
The director need not exhaust administrative remedies under this chapter in order to pursue any other administrative, civil, injunctive, or criminal remedies on behalf of the fund.
Source: SL 1991, ch 294, § 25; SL 2024, ch 146, § 8.
34A-13-14. Repealed.
Source: SL 1988, ch 290, § 14; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 154, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 146, § 23.
34A-13-15. Employment of staff--Costs and appropriations--Delegation of authority.
The department shall hire and provide staff to support its activities. The staff must be employees of the executive branch of state government and subject to the statutes, rules, and other conditions of employment that are applied to employees in the executive branch of state government. All necessary costs and appropriations must be paid from the inspection fees collected pursuant to this chapter. Reimbursements previously made, upon which no contested case was requested prior to January 1, 1992, are hereby ratified except to the extent the state or federal constitution may require judicial review. The department may delegate to the director the duties and authority necessary to complete the daily operation and administration of the fund.
Source: SL 1988, ch 290, § 15; SL 1990, ch 292, § 7; SL 1991, ch 294, § 7; SL 1992, ch 260, § 16; SL 2024, ch 146, § 9.
34A-13-16. Practices and procedures--Promulgation of rules.
The department may adopt, pursuant to chapter 1-26, rules regarding its practices and procedures, the form and procedure for applications for compensation from the fund, procedures for investigation of claims, procedures and criteria for determining the amount and type of costs that are eligible for reimbursement from the fund, procedures for acceptable methods of payment from the fund, procedures for persons to perform services for the fund, the method and forms necessary for the collection of the fee, procedures for conducting training and testing, including standards for identifying acceptable performance on a test, of those who perform services to be reimbursed under this chapter, and other provisions necessary to carry out this chapter.
Source: SL 1988, ch 290, § 16; SL 1989, ch 310, § 3; SL 1990, ch 292, § 8; SL 1991, ch 294, § 8; SL 1992, ch 260, § 34A; SL 2024, ch 146, § 10.
34A-13-16.1. Training and testing of persons who perform services to be reimbursed.
The director and the department, jointly, separately, or in cooperation with private organizations, may conduct training seminars for those who perform services to be reimbursed under this chapter, administer voluntary tests to seminar participants and publish or withhold the results of such tests to any interested members of the public.
Source: SL 1992, ch 260, § 34B.
34A-13-17. Attachment of fund to Department of Agriculture and Natural Resources--Reimbursement of costs.
The fund is attached to the Department of Agriculture and Natural Resources for budgeting and administrative support. All necessary costs of the Department of Agriculture and Natural Resources for these services shall be reimbursed from the inspection fees collected pursuant to this chapter.
Source: SL 1988, ch 290, § 17; SL 1991, ch 294, § 26; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 154, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-13-18. Deposit and crediting of revenue.
Revenue from the following sources shall be deposited in the state treasury and credited to a petroleum release compensation fund:
(1) Any fees imposed by § 34A-13-20;
(2) Any money recovered by the fund pursuant to § 34A-13-9, including administrative expenses, and any money paid under an agreement, stipulation, or settlement;
(3) Any interest attributable to investment of money in the fund;
(4) Any money received by the secretary of agriculture and natural resources in the form of gifts, grants other than federal grants, reimbursements, or appropriations from any source intended to be used for the purposes of the fund;
(5) Any money or other assets received by the secretary of agriculture and natural resources in connection with any loan from the fund or any account in the fund.
Source: SL 1988, ch 290, § 18; SL 1989, ch 310, § 4; SL 1993, ch 48, § 20; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2011, ch 1 (Ex. Ord. 11-1), § 155, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2021, ch 163, § 7.
34A-13-20. Petroleum release compensation and tank inspection fee--Amount of fee--Allocation of revenue.
A petroleum release compensation and tank inspection fee is imposed upon any petroleum products upon which the fuel excise tax is imposed by §§ 10-47B-5 to 10-47B-10, inclusive, 10-47B-9.1, and 10-47B-13. None of the exemptions from fuel excise tax allowed in § 10-47B-19 apply to this fee. The parties required to pay the fuel excise tax pursuant to the provisions of §§ 10-47B-21 to 10-47B-26, inclusive, and 10-47B-29 and 10-47B-31 are liable for payment of the petroleum release and tank inspection fee. In cases where the fuel is exempt from the fuel excise tax under the provisions of subdivisions 10-47B-19(1), (3), and (5), the supplier shall pay the fee. Responsibility for payment of the fee ceases if the petroleum product is sold and delivered by a licensed exporter outside of the state. The amount of the fee imposed is twenty dollars per one thousand gallons of petroleum. The revenue collected pursuant to this section shall be distributed monthly in the following manner:
(1) In fiscal year 2019, fifty-five percent shall be deposited in the state capital construction fund, twenty-five percent shall be deposited in the ethanol fuel fund, and twenty percent shall be deposited in the petroleum release compensation fund;
(2) In fiscal year 2020, sixty percent shall be deposited in the state capital construction fund, twenty percent shall be deposited in the ethanol fuel fund, nineteen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund as created in § 10-47B-164.1;
(3) In fiscal year 2021, sixty-six percent shall be deposited in the state capital construction fund, fifteen percent shall be deposited in the ethanol fuel fund, eighteen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund;
(4) In fiscal year 2022, seventy-two percent shall be deposited in the state capital construction fund, ten percent shall be deposited in the ethanol fuel fund, seventeen percent shall be deposited in the petroleum release compensation fund, and one percent shall be deposited in the ethanol infrastructure incentive fund; and
(5) Beginning in fiscal year 2023, eighty-one and one-half percent shall be deposited in the state capital construction fund, seventeen percent shall be deposited in the petroleum release compensation fund, and one and one-half percent shall be deposited in the ethanol infrastructure incentive fund.
Source: SL 1988, ch 290, § 20; SL 1989, ch 310, § 6; SL 1991, ch 294, § 10; SL 1992, ch 260, § 17; SL 1993, ch 48, § 18; SL 1995, ch 71, § 191; SL 1998, ch 218, § 1; SL 2002, ch 170, § 1; SL 2009, ch 55, § 33; SL 2018, ch 124, § 1.
34A-13-20.1. Transfer of funds to and from state highway fund.
If the balance of the petroleum release compensation fund falls below two million dollars and has additional accounts payable that exceed projected monthly deposits pursuant to § 34A-13-20, a transfer shall be made from the state highway fund to the petroleum release compensation fund in an amount that brings the balance of the petroleum release compensation fund to five million dollars.
Any balance in the petroleum release compensation fund in excess of six million dollars, after any monthly deposit made pursuant to § 34A-13-20, shall be transferred to the state highway fund.
Source: SL 2018, ch 124, § 2.
34A-13-22. Monthly fee--Promulgation of rules.
The fee required by § 34A-13-20 must be paid on a monthly basis by all parties subject to the fee. The department shall establish, by rules promulgated pursuant to chapter 1-26, the time and method of collection, interest on past due amounts, forms and other matters necessary for the collection of the fee.
Source: SL 1988, ch 290, § 22; SL 1995, ch 71, § 192; SL 2024, ch 146, § 11.
34A-13-23. Audits of persons subject to fee.
The department may conduct audits upon persons subject to the fee.
Source: SL 1988, ch 290, § 23; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 44, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 146, § 12.
34A-13-24. Failure to pay fee as misdemeanor--Subsequent violation as felony.
If a party required to pay the fee imposed by § 34A-13-20 on the date due fails to do so, the party is guilty of a Class 1 misdemeanor. Each subsequent violation of this section is a Class 6 felony if the violation occurs within eighteen months of a previous violation.
Source: SL 1988, ch 290, § 24; SL 1991, ch 294, § 11; SL 1995, ch 71, § 193.
34A-13-25. Notice of suspension of benefits--Notice to department--Appeal for reinstatement of benefits--Ratification of certain suspensions and reinstatements.
If any party required to pay the fee fails to do so, the director must notify that party in writing that failure to pay the fee within fifteen days shall result in the suspension of all benefits under this chapter. The director shall also notify the department, by copy, of the party's failure, and the department may require additional proof of financial responsibility. If the past due fee is paid in full after benefits are suspended, the party may appeal to the department for reinstatement of benefits in a contested case proceeding pursuant to chapter 1-26. The secretary may deny reinstatement of benefits or grant partial or complete reinstatement of benefits. Any suspension or reinstatement undertaken by the secretary upon which no judicial action has been commenced prior to January 1, 1992, is hereby ratified.
Source: SL 1988, ch 290, § 25; SL 1991, ch 294, § 12; SL 1992, ch 260, § 18; SL 1995, ch 71, § 194; SL 2024, ch 146, § 13.
34A-13-26. Administration of provisions--Hearing waiver.
The requirements of chapter 1-26 govern the administration of this chapter. Any decision made by the director becomes final unless appealed to the department within thirty days of the date of that decision. The secretary may, upon agreement with all affected parties, waive any hearing requirements of chapter 1-26 in order to provide for summary disposition of claims.
Source: SL 1988, ch 290, § 26; SL 1991, ch 294, § 13; SL 1992, ch 260, § 19; SL 2024, ch 146, § 14.
34A-13-27. Fund expenditures.
Money in the fund may only be expended or obligated:
(1) To administer the petroleum release compensation program established in this chapter;
(2) For any administrative costs and costs of corrective action taken by the fund, including investigations, legal actions, consulting costs, and other necessary costs;
(3) For any costs of recovering any expenses associated with corrective actions;
(4) For training, testing, and certification of those who perform services to be reimbursed under this chapter;
(5) For any costs paid to any state agency for services;
(6) For research and studies designed to reduce releases and improve petroleum industry methods for storage and to develop information and knowledge to aid in cleanup;
(7) To carry out inspections of tanks and to certify inspectors who may perform approved inspections of tanks;
(8) To purchase insurance for the purpose of limiting certain risks associated with providing fund coverage as deemed appropriate by the secretary;
(9) For any service provider unless the director has determined that a conflict of interest exists between the consultant and the contractor that could affect the integrity of the cleanup activities;
(10) For rule making; and
(11) For training of staff employed by the department.
Source: SL 1988, ch 290, § 27; SL 1989, ch 310, § 7; SL 1990, ch 292, § 9; SL 1991, ch 294, § 14; SL 1992, ch 260, § 20; SL 1995, ch 321 (Ex. Ord. 95-5), § 17; SL 2011, ch 1 (Ex. Ord. 11-1), § 155, eff. Apr. 12, 2011; SL 2013, ch 166, § 39; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 146, § 15.
34A-13-31. Determination of cost--Petroleum remediation requirements--Reduction for ineligible claims--Promulgation of rules.
Reimbursement may be made from the fund only if the department has determined that the costs for which reimbursement is requested were actually incurred, reasonable, and necessary as determined under rules promulgated by the department according to chapter 1-26, and were for actions that did not exceed petroleum remediation requirements established by state statutes and regulations. In establishing what constitutes reasonable and necessary costs, the department shall consider trade usage, local labor and material costs, local conditions and practices, experience of the fund, and shall make allowance for site specific conditions.
Any attempt by a covered party to claim reimbursement under circumstances when the covered party knew or should have known that the claimed reimbursement was not allowable under this chapter or rules promulgated hereunder authorizes the department to reduce otherwise allowable claims submitted by the covered party. Any reduction imposed under this section is equal to the amount of the ineligible claim.
Source: SL 1988, ch 290, § 31; SL 1991, ch 294, § 18; SL 1992, ch 260, § 24; SL 2024, ch 146, § 16.
34A-13-32. Continuous appropriation--Administrative budget submitted to Legislature.
Money in the fund is continuously appropriated to the department for the purpose of making reimbursements under and for the other purposes described in this chapter. The department shall annually submit its administrative budget to the Legislature for approval as provided in § 4-8-1.
Source: SL 1988, ch 290, § 32; SL 1989, ch 310, § 9; SL 1991, ch 294, § 27; SL 2024, ch 146, § 17.
34A-13-33. Liability of covered party not limited by reimbursement.
The right to apply for reimbursement and the receipt of reimbursement does not limit the liability of a covered party for damages or costs incurred by any person as a result of a release.
Source: SL 1988, ch 290, § 33; SL 1992, ch 260, § 26.
34A-13-34. Third party cleanup reimbursement--Department and fund--No legal process or attachment.
The amount of reimbursement to be paid for cleanup which was performed by a third party is not subject to legal process or attachment. The department and the fund are not subject to legal process, attachment, lien, or lien foreclosure action by any persons having performed cleanup work or provided materials, supplies, or services for a cleanup project.
Source: SL 1988, ch 290, § 34; SL 1991, ch 294, § 19; SL 2024, ch 146, § 18.
34A-13-39. Short title.
This chapter may be cited as the "Petroleum Inspection and Release Compensation Act."
Source: SL 1988, ch 290, § 39.
34A-13-40. Limits of reimbursement--Promulgation of rules.
The department may provide by rules, promulgated pursuant to chapter 1-26, the limits of reimbursement for corrective action and third-party claims. These limits may not exceed those set forth in § 34A-13-8.1, but may consist of any amount equal to or less than the amounts authorized for releases discovered after April 1, 1990. Any limits provided pursuant to this section are in addition to reasonable defense costs, including attorneys' fees, for third-party claims.
Source: SL 1990, ch 292, § 11; SL 1991, ch 294, § 21; SL 1992, ch 260, § 28; SL 2024, ch 146, § 19.
34A-13-41. Reimbursement to licensed petroleum marketers and other tank owners--Promulgation of rules.
The department shall provide reimbursement to licensed petroleum marketers, and other tank owners as defined by the department pursuant to rule for liability to third parties. Coverage may only be extended to tanks that are regulated in §§ 34A-2-98 and 34A-2-100, excluding tanks that are exempted from coverage requirements by rules promulgated pursuant to chapter 1-26 by the Board of Water Management, in any amount not to exceed nine hundred ninety thousand dollars as described in §§ 34A-13-8.1 and 34A-13-40 and set forth in §§ 34A-13-42 to 34A-13-46, inclusive.
Source: SL 1990, ch 292, § 12; SL 1992, ch 260, § 29; SL 1993, ch 256, § 39; SL 1995, ch 71, § 195; SL 2011, ch 165, § 158; SL 2024, ch 146, § 20.
34A-13-42. Rules for amount, terms, and period of third-party reimbursement.
Prior to providing third-party reimbursement, the department may promulgate rules pursuant to chapter 1-26 which state the amount of reimbursement, the terms and conditions of reimbursement, the period of reimbursement, and the tanks or occurrence covered by reimbursement.
Source: SL 1990, ch 292, § 13; SL 1991, ch 294, § 22; SL 2024, ch 146, § 21.
34A-13-44.1. Third-party damages--Benefits intended in or on behalf of covered party.
The provisions of this chapter relating to third-party damages are not intended to confer any benefit or create any rights or entitlements in or on behalf of any person other than a covered party.
Source: SL 1991, ch 294, § 24; SL 1992, ch 260, § 31.
34A-13-45. Damage prior to April 1, 1990.
No reimbursement may be made for third-party claims if the damage was allegedly caused by a petroleum release reported prior to April 1, 1990.
Source: SL 1990, ch 292, § 16; SL 1992, ch 260, § 32.
34A-13-46. Tanks at abandoned sites.
No reimbursement may be provided for third-party claims resulting from tanks at abandoned sites.
Source: SL 1990, ch 292, § 17; SL 1992, ch 260, § 33.
34A-13-47. Time limit for third-party claim.
No action for recovery from the fund for any third-party claim may be maintained unless it is commenced within the time permitted by chapter 15-2 for the commencement of an action against the covered party.
Source: SL 1990, ch 292, § 18; SL 1992, ch 260, § 34.
34A-13-49. Abandoned tank removal program created--Eligibility for participation.
There is hereby created within the petroleum release compensation fund, a new program to be known as the abandoned tank removal program. Under this program, the director may provide payments for tank pulling and corrective action at abandoned sites where the owner or the person having legal custody of an abandoned site has voluntarily requested such action in the manner and time established by the secretary of the Department of Agriculture and Natural Resources and if the following criteria are met:
(1) The owner or person having legal custody of the abandoned site has submitted to the director a written request to have the tank removed. The request shall be made in the manner established by the secretary of the Department of Agriculture and Natural Resources to include documentation of eligibility for the site to participate in the abandoned tank removal program, proof of ownership, and legal description;
(2) The owner or person having legal custody of the abandoned site has, in writing, waived all claims against the state, its officers, agents, and employees for damages resulting directly or indirectly from the tank pulling or corrective action;
(3) If the abandoned site is on private property, all property taxes are current; and
(4) The owner or person having legal custody of the abandoned site has agreed to transfer ownership of the removed tank and its contents to the state.
No tank is eligible for coverage under this program if the tank is located at the site of a commercially operational motor fuel vendor in service on or after April 1, 1988.
Source: SL 2000, ch 175, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 31; SL 2011, ch 1 (Ex. Ord. 11-1), § 156, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-13-50. Scope of program.
Payments made from the director for tank pulling and corrective action under the abandoned tank removal program may include:
(1) Tank pulling, as defined in this chapter, including the disposal of tank contents and specifically excluding the replacement of surface above the backfill area; and
(2) Removal of abandoned waste oil tanks and corrective action of a waste oil release located on an abandoned site.
Source: SL 2000, ch 175, § 2.
34A-13-52. Department responsible for tank removal and corrective actions under program--Director to make payments from fund.
The Department of Agriculture and Natural Resources shall be responsible for the tank removal and corrective actions subject to §§ 34A-13-49 to 34A-13-54, inclusive. The department may contract directly with consultants, contractors, other service providers, state agencies, subdivisions of government, counties, cities, townships, and tribes to carry out the provisions of §§ 34A-13-49 to 34A-13-54, inclusive. After receiving itemized documentation of all actual costs from the department, the director of the petroleum release compensation fund shall make payment within thirty days of receipt. All tank removals, pollution assessments, and corrective actions taken under §§ 34A-13-49 to 34A-13-54, inclusive, shall comply with chapters 34A-2 and 34A-12 and the rules promulgated thereunder.
Source: SL 2000, ch 175, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-13-53. Promulgation of rules.
The secretary of the Department of Agriculture and Natural Resources may promulgate, pursuant to chapter 1-26, rules regarding practices and procedures necessary to carry out the provisions of the abandoned tank removal program including the form and procedure for application for qualifying for tank pulling and corrective action.
Source: SL 2000, ch 175, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 157, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-13-54. Director to suspend payments except at high-risk sites when fund balance is two million dollars or less.
Except at sites determined to be high risk by the secretary of the Department of Agriculture and Natural Resources using risk-based corrective action criteria, the director shall suspend payments for tank pulling and corrective action at abandoned sites eligible for the abandoned tank removal program if the balance of the fund is two million dollars or below. The director shall resume payments for tank pulling and corrective action at abandoned sites eligible for the abandoned tank removal program if the fund balance exceeds two million dollars. Except as provided in §§ 34A-13-49 to 34A-13-54, inclusive, all other limits of coverage, conditions, and criteria in this chapter apply to tank pulling and corrective action taken at abandoned sites.
Source: SL 2000, ch 175, § 6; SL 2002, ch 170, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-14-1 to 34A-14-27. Repealed.
34A-15-1
Legislative findings.
34A-15-2
Definition of terms.
34A-15-3
Determination of owner or operator.
34A-15-4
Limitation on third-party liability for damage to property--Vesting of title.
34A-15-5
Conditions of limitations--Efforts to resell property.
34A-15-6
Exclusion for liability expressly created under federal or state laws.
34A-15-6.1
State brownfields revitalization and economic development program--Liability for
costs of a response action or remediation--Limitation.
34A-15-7
Effective date.
34A-15-1. Legislative findings.
The Legislature hereby finds, and declare to be the public policy of this state, that:
(1) Environmental laws of the United States and this state provide that the owner of the real property is liable for the cleanup of property contamination and define who is the owner of such property;
(2) If a borrower defaults on a loan, a lender must decide whether to foreclose and potentially become the owner. For fear of becoming liable for conditions they did not create, lenders are showing a reluctance to foreclose, thus leaving no one responsible for the cleanup. Additionally, lenders are reluctant to lend to certain types of businesses because of this potential liability;
(3) So that lenders can predict with more certainty what the costs will be if they foreclose, it is the intent of the Legislature to limit third-party liability for lenders who comply with certain conditions.
Source: SL 1992, ch 261, § 1.
34A-15-2. Definition of terms.
Terms used in this chapter mean:
(1) "Contaminate or pollute," "contaminating or polluting," or "contamination or pollution," contamination or pollution of air, water, real or personal property, livestock, wild animals, birds, fish, other aquatic life, or human beings from a location within the State of South Dakota, including contamination or pollution from hazardous waste, as defined in § 34A-11-2;
(2) "Lender-owner," any person, partnership, limited liability company, corporation, association, organization, or other legal entity which by virtue of foreclosure, whether by action, advertisement, or voluntary, nonjudicial foreclosure, or upon receipts of an assignment, bill of sale, or deed in lieu of foreclosure, becomes the owner of real or personal property;
(3) "Representative," any person, partnership, limited liability company, corporation, association, organization, or other legal entity acting in the capacity of a receiver, conservator, guardian ad litem, personal representative of a deceased person, or trustee or fiduciary of real or personal property. However, the terms trustee and fiduciary are limited to entities acting as trustee or fiduciary and which are charted by the State Division of Banking, the office of the United States comptroller of the currency, or the office of thrift supervision;
(4) "Third parties," persons, partnerships, limited liability companies, corporations, associations, organizations, or legal entities other than governmental entities seeking to enforce federal, state, or local environmental statutes, ordinances, regulations, permits, or orders; and
(5) "Third-party liability," liability to third parties for any claims arising out of or resulting from contamination or pollution, including claims for personal injury, consequential damages, lost profits, exemplary damages, or property damages.
Source: SL 1992, ch 261, § 2; SL 1994, ch 351, § 75; SL 2011, ch 165, § 160.
34A-15-3. Determination of owner or operator.
No person, partnership, limited liability company, corporation, association, organization, or other legal entity may be deemed to be an owner or operator of real or personal property who, without participating in the management of the subject real or personal property, holds indicia of ownership primarily to protect a security or lien hold interest in the subject real or personal property or in the property in which the subject real or personal property is located.
Source: SL 1992, ch 261, § 3; SL 1994, ch 351, § 76.
34A-15-4. Limitation on third-party liability for damage to property--Vesting of title.
No lender-owner or representative may by virtue of becoming the owner of real or personal property be liable for any third-party liability arising from contamination or pollution emanating from the property before the date the title vests in the lender-owner or representative. For the purposes of this chapter, the issuance of a sheriff's certificate of sale is not sufficient to vest title in the lender-owner or representative.
Source: SL 1992, ch 261, § 4.
34A-15-5. Conditions of limitations--Efforts to resell property.
No lender-owner or representative may, by virtue of becoming the owner of real or personal property, be liable for any third-party liability arising from contamination or pollution emanating from the property during the period of ownership so long as, and to the extent that:
(1) The lender-owner or representative does not knowingly cause new contamination or pollution or does not knowingly allow others to cause new contamination or pollution;
(2) The lender-owner has caused an environmental professional to conduct a visual inspection of the property and a record search of the recorded chain of title documents regarding the real property for the prior fifty years to determine the presence and condition of hazardous wastes or substances, obvious contamination, or pollution; and
(3) The lender-owner found by the enforcing agency to be in noncompliance with federal or state laws, takes steps to assure compliance with applicable laws.
This section applies to a lender-owner or representative as long as he makes reasonable efforts to resell the property.
Source: SL 1992, ch 261, § 5.
34A-15-6. Exclusion for liability expressly created under federal or state laws.
Sections 34A-15-3 to 34A-15-5, inclusive, do not affect any liability expressly created under federal or state health or environmental statutes, regulations, rules, permits, or orders.
Source: SL 1992, ch 261, § 6.
34A-15-6.1. State brownfields revitalization and economic development program--Liability for costs of a response action or remediation--Limitation.
Notwithstanding the provisions of § 34A-15-6, a lender-owner is not liable for environmental, response, cleanup, or remediation costs at a brownfields site approved by the Department of Agriculture and Natural Resources for participation in the state brownfields revitalization and economic development program unless:
(1) The lender-owner, its employees, or agents directly cause an immediate release or directly exacerbate a release of the regulated substances on or from the property or directly violate any environmental statute or regulation; or
(2) The lender-owner, its employees, or agents knowingly and willfully compelled the borrower to:
(a) Perform an action that caused an immediate release of regulated substances in excess of reportable quantities; or
(b) Violate any environmental statute or regulation.
Liability pursuant to this section is limited to the cost for a response action or remediation that is directly attributable to the lender-owner's activities set forth in subdivisions (1) and (2) of this section. Liability arises only if the lender-owner's actions were the proximate cause of the release or violation. Ownership or control of the property pursuant to a security interest during or after foreclosure does not by itself result in liability. No lender-owner is liable for any response action or remediation if the response action or remediation arises solely from a release of regulated substances in excess of reportable quantities that occurred before or commences before and continues after foreclosure. However, the lender-owner is responsible for the portion of the response action or remediation that is directly attributable to the lender-owner's aggravation of a release. A release of regulated substances in excess of reportable quantities discovered in the course of conducting environmental due diligence is presumed to be a prior or continuing release on the property.
Source: SL 2004, ch 228, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-15-7. Effective date.
This chapter applies to civil actions filed on or after July 1, 1992.
Source: SL 1992, ch 261, § 7.
CHAPTER 34A-16
REGIONAL RECYCLING AND WASTE MANAGEMENT DISTRICTS
34A-16-1 Creation of a regional recycling and waste management district.
34A-16-2 Notice of public hearing.
34A-16-3 Governing body--Composition--Terms--Vacancy.
34A-16-4 Articles of incorporation.
34A-16-5 Actions involving the validity or enforcement of any contract.
34A-16-6 Amendment of articles of incorporation.
34A-16-7 Powers of each district.
34A-16-8 Travel and subsistence expenses--Per diem.
34A-16-9 Expansion of district.
34A-16-10 Reduction in size of district.
34A-16-11 Expansion or reduction in size--Certified copy of governing resolution.
34A-16-12 County or municipality cooperation in the planning, construction, or operation of solid waste facilities.
34A-16-13 County or municipality contracts with district for provision of waste facilities and services--Terms.
34A-16-14 Powers of district.
34A-16-15 District's capacity to sue or be sued.
34A-16-16 District's interest in real or personal property.
34A-16-17 Application and acceptance of gifts, grants, or loans.
34A-16-18 Use of real or personal property--Tax exemption--Special assessments.
34A-16-19 Power to contract for operation and improvement of facilities.
34A-16-20 Establishment and collection of general rates and charges--Public hearing required--Publication of notice.
34A-16-21 Manner of billing and collecting--Discontinuance of service.
34A-16-22 Incentives to reduce waste and separate recyclable materials.
34A-16-23 Disposal of products and energy produced.
34A-16-24 Joint-powers agreements.
34A-16-25 Authorized activities.
34A-16-26 Insurance.
34A-16-27 Purchases.
34A-16-28 Issuance of revenue bonds--Payment--Revenues--Powers of commission.
34A-16-29 Issuance of bonds to pay for closure, postclosure, and contingency costs for responses to releases from facilities or to refund outstanding bonds.
34A-16-30 Use of proceeds under § 34A-16-29 limited.
34A-16-31 Solid waste management fund--Separate accounts--Audit requirements.
34A-16-32 Designation and reviewing authority defined.
34A-16-33 Obtaining designation authority.
34A-16-34 Application of designation.
34A-16-35 Adoption of management plan--Designation plan--Requirements for designation plan.
34A-16-36 Required evaluations for plan proposing designation to facilities.
34A-16-37 Certain waste under contract between hauler and different facility exempt during contract period--Exemption for certain electric generation facilities.
34A-16-38 Review and approval of designation plan.
34A-16-39 Time limit to review plan--Requirements for approval.
34A-16-40 Procedure for adopting or amending designation ordinance--Hearing--Notice.
34A-16-41 Contents of designation ordinance.
34A-16-42 Designation ordinance exceptions for certain exempt materials.
34A-16-43 Consistency of ordinance with plan--Effective date of designation--Challenging designation.
34A-16-44 Notification of intent to own or operate facility.
34A-16-45 Penalty for violation of designation ordinance.
34A-16-46 Processing and disposal of waste generated outside of district prohibited.
34A-16-47 Powers granted by chapter independent from other statutes.
34A-16-48 Entrance upon public and private lands to determine suitability of potential landfill site.
34A-16-49 Legislative findings.
34A-16-1. Creation of a regional recycling and waste management district.
Any municipality, county, or portion of a county within this state and any one or more other municipalities, counties, or portions of counties within this state may create a regional recycling and waste management district, which may provide facilities and services pursuant to this chapter for the management of solid waste as defined in § 34A-6-1.3. A district may exercise its powers upon filing with the secretary of state a notice of incorporation pursuant to chapter 6-10. A county may be divided into more than one regional recycling and waste management district; however, a municipality may only be included in a district if the entire area of the municipality lies within the district. No geographical area may be included in more than one regional recycling and waste management district, and the lands within a district need not be contiguous, provided that no more than one hundred twenty miles may intervene between noncontiguous areas. The creation of a regional recycling and waste management district shall be authorized by approval of the district's proposed articles of incorporation through a resolution of the governing body of each county and municipality listed in the proposed articles as being necessary for incorporation of the district. No county or municipality may be included in a district unless its governing body has adopted an authorizing resolution pursuant to this chapter.
Source: SL 1993, ch 259, § 1.
34A-16-2. Notice of public hearing.
No county or municipality may adopt a resolution authorized by § 34A-16-1 or 34A-16-9 without a public hearing on the resolution. Notice of the hearing shall be given at least ten days before the hearing in the official newspapers of the county or municipality. Any resolution authorized pursuant to § 34A-16-1 or § 34A-16-9 is subject to initiative and referendum as provided by chapters 7-18A and 9-20.
Source: SL 1993, ch 259, § 2.
34A-16-3. Governing body--Composition--Terms--Vacancy.
The governing body of the regional recycling and waste management district shall consist of commissioners elected or appointed as specified in the proposed articles of incorporation. The commissioners of the regional recycling and waste management district shall be composed solely of elected officials from the local governments that are included in the district. There shall be at least one commissioner from each county or fraction thereof. The names of the initial board of commissioners shall be designated in the articles of incorporation. The initial commissioners' terms shall be at least one year, and shall end on December thirty-first of the year during which a general election is held. The articles of incorporation may provide for the appointment of additional commissioners to represent areas that may be added to the district pursuant to § 34A-16-9. The addition of any new municipality or county may not be deemed an amendment to the articles of incorporation of the district. The total number of commissioners in a district shall be established in the articles of incorporation. The terms of commissioners who are first elected shall be: at least one-half but no more than sixty percent of the commissioners for terms of four years, and the remainder of the commissioners for terms of two years. Except for the commissioners first elected or appointed, all commissioners shall be elected or appointed for terms of four years each. However, if a vacancy occurs other than by expiration of a term, the district board shall fill the unexpired term by appointment. Each commissioner shall hold office until his successor has been elected or appointed and has qualified.
Source: SL 1993, ch 259, § 3.
34A-16-4. Articles of incorporation.
Upon the appointment and qualification of the initial commissioners of the board of a regional recycling and waste management district, the board shall submit to the secretary of state the district's proposed articles of incorporation. The district shall be incorporated as provided in chapter 6-10.
Source: SL 1993, ch 259, § 4.
34A-16-5. Actions involving the validity or enforcement of any contract.
In any suit, action, or proceeding involving the validity or enforcement of, or relating to, any contract of a regional recycling and waste management district, the district is conclusively deemed to have become established and authorized to transact its business and exercise its powers under this chapter upon compliance with § 34A-16-4.
Source: SL 1993, ch 259, § 5.
34A-16-6. Amendment of articles of incorporation.
The articles of incorporation of a regional recycling and waste management district may be amended by a resolution approved by at least two-thirds of the governing bodies of the municipalities and counties included in the district.
Source: SL 1993, ch 259, § 6.
34A-16-7. Powers of each district.
The powers of each regional recycling and waste management district are vested in the commissioners of the district. Each district shall adopt procedures for its own operation not inconsistent with its articles of incorporation and this chapter. The articles of incorporation may provide for an executive board with the power to conduct the business of the district. The issuance of bonds and the adoption or modification of ordinances shall be approved by the full governing body. Each regional recycling and waste management district shall organize and elect officers for terms of office to be fixed by the board of commissioners. There shall be elected a chairman and vice-chairman from among the commissioners. A district may employ an executive director, secretary, technical experts or such other officers, agents and employees, permanent and temporary, as it may require, and shall determine their qualifications, duties, and compensation. A district may employ or contract for its own legal counsel, legal staff, engineering, or other professional services.
Source: SL 1993, ch 259, § 7.
34A-16-8. Travel and subsistence expenses--Per diem.
Each commissioner shall receive travel and subsistence expense at the rates set pursuant to chapter 3-9. In addition, per diem at rates established by the Board of Finance shall be paid each member for each day of actual service for traveling to, attending, and returning from meetings, hearings, or investigations of the board of commissioners.
Source: SL 1993, ch 259, § 8; SL 2024, ch 20, § 15.
34A-16-9. Expansion of district.
A regional recycling and waste management district may expand to include additional areas not provided for in the articles of incorporation if the governing body of the county or municipality in which such additional areas are located, after the public hearing required in § 34A-16-2, adopts a resolution requesting inclusion in the district and the commissioners of the district adopt a resolution consenting to the expansion. If a municipality included within a district annexes territory, the annexed area shall be included in the same district as the municipality.
Source: SL 1993, ch 259, § 9.
34A-16-10. Reduction in size of district.
A regional recycling and waste management district may be reduced in size if the governing body of a county or municipality submits to the district a resolution requesting release of a specified area from the district and the board of commissioners of the district adopts a resolution consenting to the reduction and makes provisions for the retention or disposition of its assets and liabilities. However, if the district has any bonds outstanding, no reduction in size may release any county or municipality from its obligations, if any, with respect to such bonds.
Source: SL 1993, ch 259, § 10.
34A-16-11. Expansion or reduction in size--Certified copy of governing resolution.
If a regional recycling and waste management district is expanded or reduced in size pursuant to § 34A-16-9 or 34A-16-10, the district shall forward to the secretary of state a certified copy of each resolution adopted by the board of commissioners governing the expansion or reduction.
Source: SL 1993, ch 259, § 11.
34A-16-12. County or municipality cooperation in the planning, construction, or operation of solid waste facilities.
For the purpose of aiding and cooperating in the planning, undertaking, construction, or operation of solid waste facilities pursuant to this chapter, any county or municipality included in a district may, upon such terms, with or without consideration, as it may determine:
(1) Lend or donate money to the district;
(2) Cause water, sewer, or drainage facilities or any other facilities which it is empowered to provide, to be furnished adjacent to or in connection with solid waste facilities;
(3) Dedicate, sell, convey, or lease any of its interest in property or grant easements, licenses, or any other rights or privileges therein to the district without regard to public bidding or any other restrictions on disposition of public property;
(4) Furnish, dedicate, close, pave, install, grade, regrade, plan, plat, or replat streets, roads, roadways, and walks to such solid waste facilities;
(5) Do all things that counties and municipalities singly or in combination are allowed by law to do relating to the management of solid waste and that are necessary or convenient to aid and cooperate with the district in the planning, undertaking, construction, or operation of solid waste facilities, including providing labor or services to the district; and
(6) Enter into agreements with the district regarding action to be taken by the county or municipality pursuant to the provisions of this section.
Source: SL 1993, ch 259, § 12.
34A-16-13. County or municipality contracts with district for provision of waste facilities and services--Terms.
Any county or municipality may enter into a contract for any term of years not to exceed ten years as the governing body may determine with any regional recycling and waste management district for provision by the district of solid waste facilities or services. If any contract entered into pursuant to this section extends for more than one year, an appropriation need not have been previously made concerning such expense, except sufficient to cover the amount payable or estimated to become payable under such contract for the first year thereof. Any such contract shall bind all future governing bodies of the county or municipality and thereafter each such governing body shall annually appropriate an amount sufficient to cover the amount payable or estimated to become payable under such contract during the ensuing fiscal year.
Source: SL 1993, ch 259, § 13.
34A-16-14. Powers of district.
A regional recycling and waste management district is hereby granted all powers necessary or convenient to perform its duties, including the ability to enter into any contract necessary or proper for the exercise of its powers or the accomplishment of its purposes.
Source: SL 1993, ch 259, § 14.
34A-16-15. District's capacity to sue or be sued.
A district may sue and be sued, and is a public corporation and political subdivision of the State of South Dakota.
Source: SL 1993, ch 259, § 15.
34A-16-16. District's interest in real or personal property.
A district may acquire by purchase, lease, condemnation, gift, or grant, any right, title, and interest in and to any real or personal property deemed necessary for the exercise of its powers or the accomplishment of its purposes, including easements. Any public agency as defined in § 1-24-1 may convey to or permit the use of any property or facilities by the district, subject to the rights of the holders of any bonds issued with respect thereto, with or without compensation and without an election or approval by any other government agency. The district may hold the property for its purposes, and may lease, rent, or enter into contracts with respect to the property upon the terms and in the manner it deems advisable. The right to acquire lands and property rights by condemnation shall be exercised in accordance with chapter 21-35.
Source: SL 1993, ch 259, § 16.
34A-16-17. Application and acceptance of gifts, grants, or loans.
The district may apply for and accept gifts, loans, or other property from the United States, the state, any public agency as defined in § 1-24-1, or any person for any of its purposes, may enter into any agreement required in connection therewith, and may hold, use, and dispose of the money or property in accordance with the terms of the gift, grant, loan, or agreement.
Source: SL 1993, ch 259, § 19.
34A-16-18. Use of real or personal property--Tax exemption--Special assessments.
Any real or personal property owned, leased, used, or occupied by the district for any authorized purpose is acquired, owned, used, and occupied for public and governmental purposes, and is exempted from taxation by the state or any political subdivision of the state. However, those properties are subject to special assessments levied by a political subdivision for a local improvement in amounts proportionate to and not exceeding the special benefit received by the properties from the improvement. No possible use of the properties in any manner different from their use for solid waste management at the time may be considered in determining the special benefit received by the properties.
Source: SL 1993, ch 259, § 20.
34A-16-19. Power to contract for operation and improvement of facilities.
The district may construct, equip, develop, enlarge, improve, and operate solid waste facilities and services as it deems necessary and may negotiate contracts for the use of public or private facilities and services. The district may contract with any person, municipality, county, or other district for the construction, maintenance, and operation of, or for the provision of, facilities and services either within or without its boundaries if the commissioners of the district determine the facilities and services are adequate and available for use.
Source: SL 1993, ch 259, § 21.
34A-16-20. Establishment and collection of general rates and charges--Public hearing required--Publication of notice.
The district may establish and collect general rates and charges for the generation of solid waste and for the facilities and services provided by the district and may negotiate and collect payments for facilities and services contracted by the district. Before establishing or raising any general rates and charges, the board of commissioners shall hold a public hearing regarding the proposed rates and charges. Before publishing notice of hearing regarding proposed general changes in rates and charges, the district shall provide to the governing body of each county and municipality included within the district the financial information upon which the proposed changes are based. Notice of the hearing shall be published at least once in each of the official newspapers of the municipalities and counties included in the district. Publication may be no more than forty-five days and no less than fifteen days before the date of the hearing. Rates and charges may take into account the character, kind and quality of the service and of the solid waste, the method of disposition, the number of people served at each place of collection and all other factors which the board of commissioners, in its reasonable judgment, determines to be necessary or appropriate in establishing fair and equitable rates and charges, including establishment of reasonable reserves and depreciation and payment of principal and interest on money borrowed by the district for the acquisition or betterment of facilities.
Source: SL 1993, ch 259, § 22.
34A-16-21. Manner of billing and collecting--Discontinuance of service.
The rates and charges may be billed and collected in a manner the board shall determine. The board may impose a fee as a deposit for the service provided by the district. The district may, with notice, discontinue service to any person who fails to pay for the service provided by the district. Any district which discontinues service pursuant to this section shall notify the municipality, or county if the person whose service is discontinued resides outside a municipality, in writing that such person's service has been discontinued. Any municipality or county which is notified pursuant to this section shall enforce the applicable public nuisance provisions in force in the municipality or county.
Source: SL 1993, ch 259, § 23.
34A-16-22. Incentives to reduce waste and separate recyclable materials.
A regional recycling and waste management district may:
(1) Charge or require any person who collects solid waste in the district to charge solid waste generators rates for collection or disposal that vary depending on the volume or nature of waste generated and the potential for encouraging recycling or waste volume reduction;
(2) Require collectors to provide financial incentives to solid waste generators who separate recyclable materials from their waste; or
(3) Require use of any other mechanism to provide encouragement or rewards to solid waste generators who reduce their waste generation or who separate recyclable materials from their waste.
Source: SL 1993, ch 259, § 24.
34A-16-23. Disposal of products and energy produced.
The district may use, sell, or otherwise dispose of all of the products and energy produced by its facilities under such terms as the board of commissioners may determine.
Source: SL 1993, ch 259, § 25.
34A-16-24. Joint-powers agreements.
The district may enter into joint-powers agreements under the provisions of chapter 1-24, or any other law providing for joint or cooperative action between public agencies or Indian tribes. Nothing in this chapter limits the powers of any county or municipality to create separate entities under joint-powers agreements pursuant to chapter 1-24.
Source: SL 1993, ch 259, § 26.
34A-16-25. Authorized activities.
The district may conduct research studies and programs, collect and analyze data, prepare reports, maps, charts, and tables and conduct all necessary hearings and investigations in connection with its work and may advise and assist other government units on planning matters within the scope of its powers, duties, and objectives.
Source: SL 1993, ch 259, § 27.
34A-16-26. Insurance.
The district may require any employee to obtain and file with it an individual bond or fidelity insurance policy. It may procure insurance in amounts it deems necessary to insure against liability of the district, the board of commissioners or employees, for personal injury or death and property damage or destruction, and against risks of damage to or destruction of any of its facilities, equipment or other property as it deems necessary, or the district board may determine to self-insure for some or all of such risks. The district may procure or arrange for the procurement of any form of insurance for the protection or benefit of its employees.
Source: SL 1993, ch 259, § 28.
34A-16-27. Purchases.
The provisions of chapter 5-18A apply to purchases by the district.
Source: SL 1993, ch 259, § 29; SL 2011, ch 2, § 142.
34A-16-28. Issuance of revenue bonds--Payment--Revenues--Powers of commission.
A regional recycling and waste management district may issue revenue bonds for the acquisition or betterment of facilities for the district's solid waste management program, for closure, postclosure, and contingency costs for solid waste facilities, for responses to releases from solid waste facilities, and for refunding outstanding revenue bonds. The district's revenue bonds may be payable from net revenues in excess of current reasonable and necessary costs of operation and maintenance or from gross revenues. Gross and net revenues may be derived from general rates and charges established as provided in § 34A-16-20 and from payments from contracts pursuant to §§ 34A-16-12, 34A-16-13, 34A-16-19, and 34A-16-20. The district may irrevocably pledge and appropriate for the payment of the revenue bonds and interest thereof the gross or net revenues from the operation of all or any defined portion of the solid waste management program and the proceeds of any state or federal grant or loan, and by resolution of the board or by an indenture executed under its authority may make any and all covenants with the bondholders, or with a trustee for the bondholders, which are determined by the district to be necessary or proper to assure the marketability of the bonds, the completion of the facilities financed thereby, the segregation of the revenues pledged in a special account in the solid waste management fund and the establishment, maintenance, and collection of rates and charges sufficient to produce net revenues adequate to pay the bonds and interest thereon when due and to create and maintain a reserve for that purpose, and may mortgage the site and facilities to the trustee. Any holder of bonds issued pursuant to this chapter may by proper proceeding enforce and compel performance of all duties required by this chapter, including the making and collecting of sufficient rates, the segregation of the income and revenue and the proper application thereof. Notwithstanding the provisions and limitations of § 34A-16-9, a district may covenant and agree with bondholders that the rates to be charged for the service from the district shall be sufficient to provide for the payment of interest upon all bonds and to create a debt service fund to pay the principal thereof as and when the same becomes due, and to provide for the operation and maintenance and repairs thereof and depreciation, and shall be revised from time to time so as to produce these amounts. The bonds shall be authorized, issued, and sold as provided in chapter 6-8B, but no election is required for the issuance of the bonds. The board of commissioners of the district may agree with the holders of district obligations which are secured by revenues of the district as to the maximum amounts which the district may charge and collect for service provided by the district. The district may also authorize the issuance of bond anticipation notes in accordance with the provisions of §§ 6-8B-26 to 6-8B-29, inclusive.
Source: SL 1993, ch 259, § 30.
34A-16-29. Issuance of bonds to pay for closure, postclosure, and contingency costs for responses to releases from facilities or to refund outstanding bonds.
Any county or municipality, by resolution, may authorize the issuance of bonds to provide funds for the closure, postclosure, and contingency costs for solid waste facilities, for responses to releases from solid waste facilities or for refunding any outstanding bonds issued for any such purpose, and may pledge to the payment of the bonds and the interest thereon, its full faith, credit and taxing powers, or the proceeds of any designated tax levies, or any combination thereof. The bonds shall be issued and sold in accordance with the provisions of chapter 6-8B, but no election is required to authorize the issuance of bonds under this section.
Source: SL 1993, ch 259, § 31.
34A-16-30. Use of proceeds under § 34A-16-29 limited.
The proceeds of county or municipal bonds issued under § 34A-16-29 for closure, postclosure, and contingency costs and noncapital responses to releases may be used only for publicly-owned solid waste facilities in existence on, or closed prior to, March 14, 1993.
Source: SL 1993, ch 259, § 32.
34A-16-31. Solid waste management fund--Separate accounts--Audit requirements.
Any district owning or operating solid waste management property or facilities shall continuously maintain a special account on its official books and records designated as the solid waste management fund, to which it shall credit all receipts from the contracts, rates, and charges authorized in this chapter and from the sale of real or personal property pertaining to solid waste management purposes, and the proceeds of all gifts, grants, loans, and issues of bonds for such purposes, and to which it shall charge all costs of the acquisition, construction, enlargement, improvement, repair, supervision, control, maintenance, and operation of property, facilities, and services. Separate accounts may be established within this fund for the segregation of revenues pledged for the payment of bonds or loans or money granted or borrowed for use for a specific purpose. The district shall provide an annual statement of assets, debts, revenue, and expenses to the governing body of each county and municipality included with the district. The district is subject to the same audit requirements as those set for counties in § 4-11-4.
Source: SL 1993, ch 259, § 33.
34A-16-32. Designation and reviewing authority defined.
For purposes of this chapter, the term "designation" means a requirement by a regional recycling and waste management district that all or any portion of the solid waste that is generated within its boundaries or any service area of the district be delivered to a processing or disposal facility identified by the district.
For purposes of this chapter, the term "reviewing authority" means the Board of Minerals and Environment.
Source: SL 1993, ch 259, § 34.
34A-16-33. Obtaining designation authority.
A regional recycling and waste management district may obtain designation authority if:
(1) Designation authority has been included in the district's articles of incorporation;
(2) The district has prepared a comprehensive solid waste management plan and designation plan as provided in § 34A-16-35;
(3) The district's designation plan has been approved by the reviewing authority pursuant to § 34A-16-38; and
(4) The district has adopted a designation ordinance as provided in §§ 34A-16-40 to 34A-16-44, inclusive.
Source: SL 1993, ch 259, § 35.
34A-16-34. Application of designation.
The designation may not apply to or include materials that are separated from solid waste by the generator of the waste for reuse or recycling and recovered for reuse in their original form or for use in manufacturing processes.
Source: SL 1993, ch 259, § 36.
34A-16-35. Adoption of management plan--Designation plan--Requirements for designation plan.
Before adopting a designation ordinance, the district shall adopt a comprehensive solid waste management plan. The district shall also prepare a designation plan which may be combined with the comprehensive solid waste management plan. A district's designation plan shall be consistent with its solid waste management plan. The designation plan shall evaluate:
(1) The benefits of the designation, including the public purposes achieved by the conservation and recovery of resources, the furtherance of the district's comprehensive solid waste management plan, the assurance of proper solid waste disposal, and the reduction of potential liability of the district's members under state and federal law;
(2) The estimated costs of the designation, including the direct capital, operating, and maintenance costs of the facility designated, the indirect costs and the long-term effects of the designation;
(3) Whether the designation will result in the recovery of resources or energy from the materials that would otherwise be wasted;
(4) Whether the designation will lessen the demand for and use of indiscriminate land disposal of solid waste;
(5) Whether the designation is necessary for the financial support of the facility;
(6) Whether less restrictive methods for ensuring an adequate solid waste supply are available; and
(7) Other feasible and prudent waste management alternatives for accomplishing the purposes of the proposed designation, the direct and indirect costs of the alternatives, including capital and operating costs, and the effects of the alternatives on the cost to generators.
Source: SL 1993, ch 259, § 37.
34A-16-36. Required evaluations for plan proposing designation to facilities.
If the plan proposes designation to disposal facilities, the designation plan shall also evaluate:
(1) Whether the disposal facility is part of an integrated waste management system involving a processing facility and the designation is necessary for the financial support of the processing facility;
(2) Whether the designation will better serve to protect public health and safety;
(3) The impacts on other disposal facilities inside and outside the area;
(4) Whether the designation is necessary to promote regional waste management programs and cooperation; and
(5) The extent to which the design and operation of the disposal facility protects the environment including whether it is permitted under current law.
Source: SL 1993, ch 259, § 38.
34A-16-37. Certain waste under contract between hauler and different facility exempt during contract period--Exemption for certain electric generation facilities.
If the plan proposes designation to a disposal facility, any solid waste that is subject to a contract between a hauler and a different facility that is in effect on the date notice is given under § 34A-16-40 is not subject to the designation during the contract period. The owner of any electric generation facility located within the State of South Dakota which has been authorized by the Department of Agriculture and Natural Resources to operate a solid waste facility on its owned or leased realty for the purpose of disposing of solid waste resulting from the generation of electricity shall be excluded from the effect of this chapter and its owned or leased realty used for the siting of its electric generation facility and its solid waste storage may not be a geographical part of any such district.
Source: SL 1993, ch 259, § 39; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-16-38. Review and approval of designation plan.
The district shall submit the designation plan to the reviewing authority for review and approval or disapproval. If the designation plan has been approved by the reviewing authority or another state agency as part of the review and approval of a comprehensive solid waste management plan for the district, then no further submission or approval is required under this chapter.
Source: SL 1993, ch 259, § 40.
34A-16-39. Time limit to review plan--Requirements for approval.
The reviewing authority shall complete its review pursuant to § 34A-16-38 and make its decision within ninety days following submission of the plan for review. The reviewing authority shall approve the designation plan if the plan satisfies the requirements of §§ 34A-16-35 to 34A-16-37, inclusive, or, in the case of designation to disposal facilities, if the reviewing authority finds that the plan has demonstrated that the designation is necessary and is consistent with the comprehensive waste management plan. The reviewing authority may attach conditions to its approval that relate to matters required in a designation ordinance under §§ 34A-16-41 and 34A-16-42. Any substantive amendment to the plan shall be submitted for review in accordance with this section.
Source: SL 1993, ch 259, § 41.
34A-16-40. Procedure for adopting or amending designation ordinance--Hearing--Notice.
A district with an approved designation plan shall proceed as provided in this section when adopting or amending a designation ordinance. The district shall hold a public hearing. Notice of the hearing shall:
(1) Be published in each official newspaper of the counties and municipalities included in the district once a week for two successive weeks, the first publication being at least ten days before the date of the hearing;
(2) Be mailed to counties, municipalities, processing and disposal facility operators, and licensed solid waste collectors who may be expected to use the facility;
(3) Describe the area in which the designation will apply and the plans for the use of the solid waste;
(4) Specify the point of delivery of the solid waste;
(5) Estimate the types and quantities of solid waste subject to the designation; and
(6) Estimate the fee to be charged for the use of the facilities and for any products of the facilities.
A designation ordinance is not invalid by reason of the failure of the district to provide written notice to an entity listed in this section. Following the public hearing, the designation ordinance may be adopted with or without amendment. However, no property may be included in the area in which the designation applies which has not been described in the notice required in this section.
Source: SL 1993, ch 259, § 42.
34A-16-41. Contents of designation ordinance.
The designation ordinance shall define the geographic area and the types and quantities of solid waste subject to designation; specify the point or points of delivery of the solid waste; require that the designated solid waste be delivered to the specified point or points of delivery; require the designated facility to accept all designated solid waste delivered to the specified point or points of delivery, unless the facility has notified waste collectors in the designated area that the facility is inoperative; set out the procedures and principles to be followed by the district in establishing and amending any rates and charges at the designated facility; and state any additional regulations governing waste collectors or other matters necessary to implement the designation.
Source: SL 1993, ch 259, § 43.
34A-16-42. Designation ordinance exceptions for certain exempt materials.
The designation ordinance shall provide an exception for materials that are exempt or excluded from the designation under § 34A-16-34 or 34A-16-37; and for the term of the contract, shall provide an exception for materials subject to a contract affecting the delivery of the waste to the facility.
Source: SL 1993, ch 259, § 44.
34A-16-43. Consistency of ordinance with plan--Effective date of designation--Challenging designation.
The designation ordinance may not be materially inconsistent with the approved designation plan for the district. The effective date of the designation shall be specified in the designation ordinance and may be not less than sixty days after adoption of the designation ordinance. The designation is binding on all political subdivisions, landfill operators, solid waste generators, and solid waste collectors in the designation area. Any action challenging a designation shall be brought within sixty days of the adoption of the designation ordinance.
Source: SL 1993, ch 259, § 45.
34A-16-44. Notification of intent to own or operate facility.
Any person proposing to own or operate a processing facility using waste materials subject to a designation ordinance may notify the regional recycling and waste management district.
Source: SL 1993, ch 259, § 46.
34A-16-45. Penalty for violation of designation ordinance.
Any person who violates a designation ordinance adopted pursuant to this chapter is guilty of a Class 1 misdemeanor and is also subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than ten thousand dollars per day per violation, for damages to compensate the state for impairment of the environment of this state. An action for the recovery of a civil penalty or compensation damages shall, upon demand, be tried by a jury.
Source: SL 1993, ch 259, § 47.
34A-16-46. Processing and disposal of waste generated outside of district prohibited.
No solid waste disposal facility owned or operated by any municipality, county, or regional recycling and solid waste management district located within a regional recycling and waste management district may accept for processing or disposal any solid waste generated outside the boundaries of the district. However, such a municipality, county, or regional recycling and waste management district may, by contract with another municipality, county, or regional recycling and waste management district for a period not exceeding one year, accept for processing or disposal solid waste generated within such municipality, county, or regional recycling and waste management district.
Source: SL 1993, ch 259, § 48A.
34A-16-47. Powers granted by chapter independent from other statutes.
The powers granted by this chapter, including the powers granted to a regional recycling and waste management district, a county or a municipality, are independent from and shall be supplementary to, powers granted by any other statute, and restrictions, conditions, procedural provisions, or other requirements contained in other statutes shall not be deemed to apply to the exercise of powers granted under this chapter unless the same are expressly incorporated by reference.
Source: SL 1993, ch 259, § 49.
34A-16-48. Entrance upon public and private lands to determine suitability of potential landfill site.
A district, in the course of investigating and analyzing the suitability of land sought to be acquired for district landfill purposes, may, after reasonable notice and during normal business hours, enter upon any public or private land for the purpose of obtaining information essential to the investigation and analysis, including conducting soil and subsurface geological sampling and survey. This section may not be construed to permit entry into any enclosed structure. The district shall compensate the owner, or any person entitled to compensation, for any damage to the property caused by the entrance and investigation activity. No entry upon private property may be made pursuant to this section against the expressed refusal of consent by the owner or person in rightful possession of the property without the aid of an order of the circuit court authorizing such entry. Upon application by the district, the circuit court may enter its order authorizing entry upon the private property, if such order is entered after notice of hearing on the application is provided to the property owner or person in rightful possession as may be required by the court, and if upon such hearing the circuit court finds that reasonable and justifiable cause exists for the entry upon the private property for the investigative purposes authorized by this section.
Source: SL 1993, ch 259, § 49A.
34A-16-49. Legislative findings.
The Legislature hereby finds that:
(1) The high and increasing cost of owning, operating, and closure of solid waste facilities, and the financing thereof, and the increasing federal and other regulatory requirements pertaining to such solid waste facilities, has created an urgent demand for action by counties, municipalities, and others in this state;
(2) Such urgent demands, together with high and increasing costs and regulatory requirements, may result in the inability of various counties and municipalities to respond in a timely manner and thereby endanger the health and safety of the citizens of this state;
(3) Such high and increasing costs require new methods for the financing of solid waste management facilities;
(4) It is, accordingly, in furtherance of the interest and welfare of all citizens of South Dakota that regional recycling and waste management districts be permitted to be formed by counties and municipalities of this state in a timely manner for the purpose of financing solid waste management facilities and closing existing facilities and, to this end, it is intended that this chapter be liberally construed to accomplish these purposes;
(5) There is an immediate need to protect the public peace, health, and safety of the state by authorizing the formation of regional recycling and waste management districts to respond to such urgent demands, high and increasing costs and regulatory requirements imposed by the federal government in connection with such matters, and in order to protect municipalities and counties, and their residents, from the financial burdens of such regulations and the potential health consequences which may result if adequate and modern solid waste management facilities are not constructed, operated, and maintained; and
(6) That the foregoing urgent demand, high and increasing costs and regulatory requirements pose an immediate threat to the existing public institutions of this state and to the public health and safety of this state and its people.
Source: SL 1993, ch 259, § 50.
34A-17-1
Short title.
34A-17-2
Definitions.
34A-17-3
Nature of rights--Subordination of interests.
34A-17-4
Content of environmental covenant.
34A-17-5
Validity--Effect on other instruments.
34A-17-6
Relationship to other land-use law.
34A-17-7
Notice--Copy of covenant.
34A-17-8
Recording.
34A-17-9
Duration--Amendment by court action.
34A-17-10
Amendment or termination by consent.
34A-17-11
Enforcement of covenant--Injunction or other equitable relief.
34A-17-12
Registry--Substitute notice.
34A-17-13
Uniformity of application and construction.
34A-17-14
Relation to Electronic Signatures in Global and National Commerce Act.
34A-17-1. Short title.
This chapter may be cited as the Uniform Environmental Covenants Act.
Source: SL 2005, ch 196, § 1.
34A-17-2. Definitions.
In this chapter:
(1) "Activity and use limitations," means restrictions or obligations created under this chapter with respect to real property;
(2) "Agency," means the Department of Agriculture and Natural Resources or any other state or federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created;
(3) "Common interest community," means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community;
(4) "Environmental covenant," means a servitude arising under an environmental response project that imposes activity and use limitations;
(5) "Environmental response project," means a plan or work performed for environmental remediation of real property and conducted:
(A) Under a federal or state program governing environmental remediation of real property, including chapter 34A-10;
(B) Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or
(C) Under a state voluntary clean-up program;
(6) "Holder," means the grantee of an environmental covenant as specified in § 34A-17-3(a);
(7) "Person," means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
(8) "Record," used as a noun, means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(9) "State," means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
Source: SL 2005, ch 196, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-17-3. Nature of rights--Subordination of interests.
(a) Any person, including a person that owns an interest in the real property, the agency, or a municipality or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder is an interest in real property.
(b) A right of an agency under this chapter or under an environmental covenant, other than a right as a holder, is not an interest in real property.
(c) An agency is bound by any obligation it assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights, or protections granted or imposed under law other than this chapter except as provided in the covenant.
(d) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
(1) An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant;
(2) This chapter does not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant;
(3) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association;
(4) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.
Source: SL 2005, ch 196, § 3.
34A-17-4. Content of environmental covenant.
(a) An environmental covenant must:
(1) State that the instrument is an environmental covenant executed pursuant to this chapter;
(2) Contain a legally sufficient description of the real property subject to the covenant;
(3) Describe the activity and use limitations on the real property;
(4) Identify every holder;
(5) Be signed by the agency, every holder, and every owner of the fee simple of the real property subject to the covenant; and
(6) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
(b) In addition to the information required by subsection (a), an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any:
(1) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
(2) Requirements for periodic reporting describing compliance with the covenant;
(3) Rights of access to the property granted in connection with implementation or enforcement of the covenant;
(4) A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
(5) Limitation on amendment or termination of the covenant in addition to those contained in §§ 34A-17-9 and 34A-17-10; and
(6) Rights of the holder in addition to its right to enforce the covenant pursuant to § 34A-17-11.
(c) In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.
Source: SL 2005, ch 196, § 4.
34A-17-5. Validity--Effect on other instruments.
(a) An environmental covenant that complies with this chapter runs with the land.
(b) An environmental covenant that is otherwise effective is valid and enforceable even if:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to a person other than the original holder;
(3) It is not of a character that has been recognized traditionally at common law;
(4) It imposes a negative burden;
(5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder;
(6) The benefit or burden does not touch or concern real property;
(7) There is no privity of estate or contract;
(8) The holder dies, ceases to exist, resigns, or is replaced; or
(9) The owner of an interest subject to the environmental covenant and the holder are the same person.
(c) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before the effective date of this chapter is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) or because it was identified as an easement, servitude, deed restriction, or other interest. This chapter does not apply in any other respect to such an instrument.
(d) This chapter does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.
Source: SL 2005, ch 196, § 5.
34A-17-6. Relationship to other land-use law.
This chapter does not authorize a use of real property that is otherwise prohibited by zoning, by law other than this chapter regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are authorized by zoning or by law other than this chapter.
Source: SL 2005, ch 196, § 6.
34A-17-7. Notice--Copy of covenant.
(a) A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to:
(1) Each person that signed the covenant;
(2) Each person holding a recorded interest in the real property subject to the covenant;
(3) Each person in possession of the real property subject to the covenant;
(4) Each municipality or other unit of local government in which real property subject to the covenant is located; and
(5) Any other person the agency requires.
(b) The validity of a covenant is not affected by failure to provide a copy of the covenant as required under this section.
Source: SL 2005, ch 196, § 7.
34A-17-8. Recording.
(a) An environmental covenant and any amendment or termination of the covenant must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
(b) Except as otherwise provided in § 34A-17-9(c), an environmental covenant is subject to the laws of this state governing recording and priority of interests in real property.
Source: SL 2005, ch 196, § 8.
34A-17-9. Duration--Amendment by court action.
(a) An environmental covenant is perpetual unless it is:
(1) By its terms limited to a specific duration or terminated by the occurrence of a specific event;
(2) Terminated by consent pursuant to § 34A-17-10;
(3) Terminated pursuant to subsection (b);
(4) Terminated by foreclosure of an interest that has priority over the environmental covenant; or
(5) Terminated or modified in an eminent domain proceeding, but only if:
(A) The agency that signed the covenant is a party to the proceeding;
(B) All persons identified in § 34A-17-10(a) and (b) are given notice of the pendency of the proceeding; and
(C) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
(b) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in § 34A-17-10(a) and (b) have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant. The agency's determination or its failure to make a determination upon request is subject to review pursuant to chapter 1-26.
(c) Except as otherwise provided in subsections (a) and (b), an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
(d) An environmental covenant may not be extinguished, limited, or impaired by application of chapter 43-30 or 43-30A.
Source: SL 2005, ch 196, § 9.
34A-17-10. Amendment or termination by consent.
(a) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:
(1) The agency;
(2) The current owner of the fee simple of the real property subject to the covenant;
(3) Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
(4) Except as otherwise provided in subsection (d)(2), the holder.
(b) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
(c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.
(d) Except as otherwise provided in an environmental covenant:
(1) A holder may not assign its interest without consent of the other parties;
(2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a); and
(3) A court of competent jurisdiction may fill a vacancy in the position of holder.
Source: SL 2005, ch 196, § 10.
34A-17-11. Enforcement of covenant--Injunction or other equitable relief.
(a) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:
(1) A party to the covenant;
(2) The agency;
(3) Any person to whom the covenant expressly grants power to enforce;
(4) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or
(5) A municipality or other unit of local government in which the real property subject to the covenant is located.
(b) This chapter does not limit the regulatory authority of the agency under law other than this chapter with respect to an environmental response project.
(c) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.
Source: SL 2005, ch 196, § 11.
34A-17-12. Registry--Substitute notice.
(a) The secretary of state shall establish and maintain a registry that contains all environmental covenants and any amendment or termination of those covenants. The registry may also contain any other information concerning environmental covenants and the real property subject to them which the secretary of state considers appropriate. The registry is a public record.
(b) After an environmental covenant or an amendment or termination of a covenant is filed in the registry established pursuant to subsection (a), a notice of the covenant, amendment, or termination that complies with this section may be recorded in the land records in lieu of recording the entire covenant. Any such notice must contain:
(1) A legally sufficient description and any available street address of the real property subject to the covenant;
(2) The name and address of the owner of the fee simple interest in the real property, the agency, and the holder if other than the agency;
(3) A statement that the covenant, amendment, or termination is available in a registry at the Office of the Secretary of State which discloses the method of any electronic access; and
(4) A statement that the notice is notification of an environmental covenant executed pursuant to this chapter.
(c) A statement in substantially the following form, executed with the same formalities as a deed in this state, satisfies the requirements of subsection (b):
"1. This notice is filed in the land records of the county of [insert name of jurisdiction in which the real property is located] pursuant to § 34A-17-12.
2. This notice and the covenant, amendment, or termination to which it refers may impose significant obligations with respect to the property described below.
3. A legal description of the property is attached as Exhibit A to this notice. The address of the property that is subject to the environmental covenant is [insert address of property] [not available].
4. The name and address of the owner of the fee simple interest in the real property on the date of this notice is [insert name of current owner of the property and the owner's current address as shown on the tax records of the jurisdiction in which the property is located].
5. The environmental covenant, amendment, or termination was signed by [insert name and address of the agency].
6. The environmental covenant, amendment, or termination was filed in the registry on [insert date of filing].
7. The full text of the covenant, amendment, or termination and any other information required by the agency is on file and available for inspection and copying in the registry maintained for that purpose by the Office of the Secretary of State in the State Capitol. The covenant, amendment, or termination may be found electronically at www.sdsos.gov."
Source: SL 2005, ch 196, § 12.
34A-17-13. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2005, ch 196, § 13.
34A-17-14. Relation to Electronic Signatures in Global and National Commerce Act.
This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001 et seq.) but does not modify, limit, or supersede Section 101 of that Act (15 U. S.C. 7001(a)) or authorize electronic delivery of any of the notices described in Section 103 of that Act (15 U.S.C. 7003(b)).
Source: SL 2005, ch 196, § 14.
CHAPTER 34A-18
OIL PIPELINES
34A-18-1 Definition of terms.
34A-18-2 Oil spill response plan required.
34A-18-3 Updating of oil spill response plan.
34A-18-4 Consultation with department.
34A-18-5 Time for submission of oil spill response plan.
34A-18-6 Review of oil spill response plan.
34A-18-7 Modifications to oil spill response plan to be submitted.
34A-18-8 Implementation of plan in the event of oil spill.
34A-18-9 Reports regarding spill.
34A-18-10 Repealed
34A-18-1. Definition of terms.
Terms used in this chapter mean:
(1) "Crude oil," any unrefined liquid petroleum;
(2) "Crude oil pipeline operator," any person that is transporting crude oil via a pipeline;
(3) "Department," the South Dakota Department of Agriculture and Natural Resources.
Source: SL 2008, ch 180, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-18-2. Oil spill response plan required.
Each crude oil pipeline operator which is issued a permit from the South Dakota Public Utilities Commission under the Energy Conversion and Transmission Facilities Act shall prepare an oil spill response plan. An oil spill response plan must plan for resources for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge. Each response plan must include, but not be limited to:
(1) Immediate notification procedures;
(2) Spill detection and mitigation procedures;
(3) The name, address, and telephone number of the oil spill response organization, if appropriate;
(4) Response activities and response resources;
(5) Names and telephone numbers of federal, state, and local agencies which the operator expects to have pollution control responsibilities or support;
(6) Training procedures;
(7) Equipment testing;
(8) Drill types, schedules, and procedures; and
(9) Plan review and update procedures.
No oil spill response plan is effective until it is approved by the department.
Source: SL 2008, ch 180, § 2.
34A-18-3. Updating of oil spill response plan.
Each crude oil pipeline operator shall update its response plan to address new or different operating conditions or information. Each operator shall review its response plan in full at least every five years from the date of the last submission.
Source: SL 2008, ch 180, § 3.
34A-18-4. Consultation with department.
Each crude oil pipeline operator shall consult the department during the preparation of its oil spill response plan.
Source: SL 2008, ch 180, § 4.
34A-18-5. Time for submission of oil spill response plan.
Each crude oil pipeline operator shall submit its initial oil spill response plan to the department prior to putting a pipeline in operation.
Source: SL 2008, ch 180, § 5.
34A-18-6. Review of oil spill response plan.
Each crude oil pipeline operator shall review its oil spill response plan at least every five years from the date of the last submission to the department.
Source: SL 2008, ch 180, § 6.
34A-18-7. Modifications to oil spill response plan to be submitted.
Each crude oil pipeline operator shall submit any modifications to its response plan to the department within thirty days of making such a change.
Source: SL 2008, ch 180, § 7.
34A-18-8. Implementation of plan in the event of oil spill.
Each crude oil pipeline operator shall implement its oil response plan in the event of an oil spill regardless of the cause of the spill or the party responsible for the spill.
Source: SL 2008, ch 180, § 8.
34A-18-9. Reports regarding spill.
Each crude oil pipeline operator that experiences a spill shall file a written report with the department, within thirty days of discovery of the spill, if the spill:
(1) Is of five gallons or more; or
(2) Causes an explosion or fire; or
(3) Causes the injury or death of any person.
Source: SL 2008, ch 180, § 9.