CHAPTER 34-44
ASBESTOS ABATEMENT TRAINING PROJECT
34-44-1 Definitions.
34-44-2 School building defined.
34-44-3 Promulgation of rules to establish asbestos abatement training program.
34-44-4 Training requirements--Sublevels of contractors and workers.
34-44-5 Certificate required of asbestos contractor--Violation as misdemeanor--Civil penalty.
34-44-6 Responsibility of asbestos contractor for handling and delivery of friable asbestos material--Penalty for violation.
34-44-7 Duty of owner or operator to employ only certified asbestos contractors.
34-44-8 Duty of owner, operator, etc., to specify in bid document whether project involved asbestos-containing materials--Violation as misdemeanor.
34-44-9 Duty of owner or operator to ensure that employees work under certified asbestos contractors and meet worker requirements--Violation as misdemeanor--Civil penalty.
34-44-9.1 No claim against certified contractor--Insurance.
34-44-10 Asbestos abatement certificate--Requirements for issuance to contractor.
34-44-11 Application for contractor's certification or renewal--Failure to obtain as misdemeanor.
34-44-12 Suspension or revocation of contractor's certificate--Grounds.
34-44-13 Worker to hold certificate--Violation as misdemeanor--Civil penalty.
34-44-14 Issuance of worker certificate--Training course.
34-44-15 Worker review course as condition of certificate renewal--When required.
34-44-16 Procedure for submitting certificate and renewal application.
34-44-17 Suspension or revocation of contractor's or worker's certificate.
34-44-18 Approval of alternative procedure on case-by-case basis.
34-44-19 Rules for approval of training courses--Approval required to offer training.
34-44-20 Training approval requirements.
34-44-21 Contents of training course.
34-44-22 Ability and proficiency of person providing training course to be demonstrated.
34-44-23 Training course materials and records to be made available--Access to training sessions.
34-44-24 Procedure for submitting approval and renewal applications.
34-44-25 Suspension or revocation of training course approval.
34-44-26 Rules for training reciprocity.
34-44-27 Rules adopting fee schedule--Amount of fees--Payment and deposit--Nonrefundability.
34-44-28 34-44-28. Repealed by SL 1990, ch 280, § 5.
34-44-29 Certification as bid requirement.
34-44-30 Responsibility of Department of Agriculture and Natural Resources.
34-44-31 Inspection of asbestos abatement project--Entry without notice or warrant--Waiver requirement as condition of certification or approval.
34-44-32 Responsibility of counties for providing disposal sites.
34-44-33 Certain persons not required to be certified.
34-44-34 Asbestos projects in progress--Temporary exemptions--Notice and application required--Denial of approval of project for noncompliance, etc.--Compliance with existing state and federal requirements.
34-44-1. Definitions.
Terms used in this chapter mean:
(1) \"Board,\" the Board of Minerals and Environment;
(2) \"Asbestos contractor,\" any person that undertakes an asbestos project, including inspections for asbestos-containing materials, prepares an asbestos management plan, or designs or carries out an asbestos abatement project;
(3) \"Department,\" Department of Agriculture and Natural Resources;
(4) \"Trained worker,\" any person who has successfully completed specified training in and can demonstrate knowledge of the health and safety aspects of working with asbestos;
(5) \"Worker,\" an employee or agent of an asbestos contractor or facility owner or operator who has minimal awareness training.
Source: SL 1988, ch 284, § 1; SL 1990, ch 280, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34-44-2. School building defined.
For the purpose of this chapter, \"school building\" includes any of the following:
(1) Any structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food;
(2) Any gymnasium or other facility which is specially designed for athletic or recreational activities for an academic course in physical education;
(3) Any other facility used for the instruction or housing of students or for the administration of educational or research programs;
(4) Any maintenance, storage, or utility facility, including any hallway, essential to the operation of any facility described in this section;
(5) Any portico or covered exterior hallway or walkway of a facility described in this section;
(6) Any exterior portion of a mechanical system used to condition interior space of a facility described in this section.
Source: SL 1988, ch 284, § 1A.
34-44-3. Promulgation of rules to establish asbestos abatement training program.
The board shall promulgate rules pursuant to chapter 1-26 to establish an asbestos abatement training program that assures the proper and safe abatement of asbestos hazards through asbestos contractor certification and worker certification. The rules shall specifically include, but not be limited to:
(1) Criteria for asbestos contractor certification and training;
(2) Criteria for worker certification and training.
No rule adopted pursuant to this chapter may be more stringent than those promulgated by the environmental protection agency under authority of federal laws governing the control of asbestos. However, the Board of Minerals and Environment shall promulgate rules to require that workers, asbestos contractors, supervisors, designers, management planners, and inspectors dealing with demolition or renovation projects under the National Emissions Standards for Hazardous Air Pollutants be certified.
Source: SL 1988, ch 284, § 2; SL 1990, ch 280, § 2.
34-44-4. Training requirements--Sublevels of contractors and workers.
In establishing the training requirements under § 34-44-3, the board shall adopt appropriate training requirements that reflect the different levels of responsibility of the asbestos contractor or worker, so that within the category of asbestos contractor, sublevels shall be separately certified or exempted and within the category of worker, sublevels shall be separately certified or exempted.
Source: SL 1988, ch 284, § 3.
34-44-5. Certificate required of asbestos contractor--Violation as misdemeanor--Civil penalty.
No asbestos contractor may work on an asbestos project unless the asbestos contractor holds a certificate issued by the department under § 34-44-10. A violation of this section is a Class 1 misdemeanor. In addition any person who violates this section is subject to a civil penalty not to exceed one thousand dollars per day of violation.
Source: SL 1988, ch 284, § 4.
34-44-6. Responsibility of asbestos contractor for handling and delivery of friable asbestos material--Penalty for violation.
The asbestos contractor carrying out an asbestos project is responsible for the safe and proper handling and delivery of waste that includes friable asbestos material to a landfill authorized to receive such waste. A violation of this section is a Class 1 misdemeanor.
In addition, any person who violates this section is subject to a civil penalty not to exceed one thousand dollars per day of violation.
Source: SL 1988, ch 284, § 5; SL 1990, ch 280, § 3; SL 1993, ch 254.
34-44-7. Duty of owner or operator to employ only certified asbestos contractors.
An owner or operator of a facility containing asbestos shall allow only certified asbestos contractors to perform asbestos projects.
Source: SL 1988, ch 284, § 6.
34-44-8. Duty of owner, operator, etc., to specify in bid document whether project involved asbestos-containing materials--Violation as misdemeanor.
An owner, operator, or person responsible for soliciting bids, proposals, or quotations for any project, as provided in this chapter unless such project work is exempt under applicable state and federal law, shall, as part of the bid document, specify whether the project does or does not involve asbestos-containing materials including the type, location, and quantity of any asbestos-containing materials. A violation of this section is a Class 1 misdemeanor.
Source: SL 1988, ch 284, § 6A; SL 1990, ch 280, § 4.
34-44-9. Duty of owner or operator to ensure that employees work under certified asbestos contractors and meet worker requirements--Violation as misdemeanor--Civil penalty.
Any facility owner or operator whose own employees renovate or demolish a facility may allow the employees to work on asbestos abatement projects only if the employees are under the direction of an asbestos contractor who complies with the training and certification requirements established under § 34-44-10 and the employees comply with the worker requirements of §§ 34-44-13 and 34-44-14. A violation of this section is a Class 1 misdemeanor. Any person who violates this section is also subject to a civil penalty not to exceed one thousand dollars per day of violation.
Source: SL 1988, ch 284, § 7; SL 1990, ch 280, § 4A.
34-44-9.1. No claim against certified contractor--Insurance.
If asbestos abatement is a part of any project, neither the owner, employees or agents of the owner, nor any other person may have any claim, right, or action against the prime contractor for any asbestos related injury or damage arising from the activities of a certified asbestos abatement subcontractor. Unless exempt under applicable state and federal law, no asbestos abatement work may be performed except by a certified asbestos contractor. A certified asbestos abatement subcontractor shall hold the owner and general contractor harmless from any liability arising from such subcontractor's activities on the project. A certified asbestos abatement contractor shall cause the owner and, if acting as a subcontractor, the general contractor to be named as additional insureds and provide sufficient proof of insurance for purposes of this section.
Source: SL 1990, ch 280, § 6.
34-44-10. Asbestos abatement certificate--Requirements for issuance to contractor.
The department shall issue an asbestos abatement certificate to any asbestos contractor who:
(1) Successfully completes an approved training course;
(2) Demonstrates that each of his workers who works on or is directly responsible for an asbestos abatement project is certified under §§ 34-44-13 and 34-44-14 as appropriate;
(3) Certifies that he has read, understands and shall comply with the applicable state and federal rules on asbestos abatement.
Source: SL 1988, ch 284, § 8.
34-44-11. Application for contractor's certification or renewal--Failure to obtain as misdemeanor.
An asbestos contractor shall apply for a certification or renewal of a certification according to the procedures established by the board. Failure to obtain certification or renewal thereof is a Class 1 misdemeanor.
Source: SL 1988, ch 284, § 9.
34-44-12. Suspension or revocation of contractor's certificate--Grounds.
The department may suspend or revoke, pursuant to chapter 1-26, an asbestos abatement certificate issued to an asbestos contractor under § 34-44-10 if the asbestos contractor:
(1) Fraudulently obtains or attempts to obtain a certificate;
(2) Fails at any time to satisfy the qualifications for a certificate or to comply with rules adopted by the board under this chapter;
(3) Fails to meet any applicable state or federal standard relating to asbestos abatement;
(4) Permits an untrained worker to work on an asbestos abatement project;
(5) Employs a worker who fails to comply with applicable state or federal rules relating to asbestos abatement.
Source: SL 1988, ch 284, § 10.
34-44-13. Worker to hold certificate--Violation as misdemeanor--Civil penalty.
No worker may work on an asbestos abatement project unless the person holds a certificate issued by the department. A violation of this section is a Class 1 misdemeanor. Any person who violates this section is also subject to a civil penalty not to exceed one thousand dollars per day of violation.
Source: SL 1988, ch 284, § 11.
34-44-14. Issuance of worker certificate--Training course.
The department shall issue an asbestos abatement certificate to a worker who successfully completes an asbestos abatement training course approved by the department.
Source: SL 1988, ch 284, § 12.
34-44-15. Worker review course as condition of certificate renewal--When required.
If the department determines there is a need for a new category of workers or need to update the workers' training in order to meet new or changed conditions, the board may require the worker, as a condition of certificate renewal, to successfully complete an approved asbestos abatement review course.
Source: SL 1988, ch 284, § 13.
34-44-16. Procedure for submitting certificate and renewal application.
A worker or the facility owner or operator shall submit an application for an asbestos abatement certificate and renewal of a certificate according to procedures established by rule by the board.
Source: SL 1988, ch 284, § 14.
34-44-17. Suspension or revocation of contractor's or worker's certificate.
The department may suspend or revoke a certificate pursuant to chapter 1-26 if an asbestos contractor or worker fails to comply with any provisions of this chapter or with rules promulgated pursuant to chapter 34A-1 as they apply to asbestos projects.
Source: SL 1988, ch 284, § 15.
34-44-18. Approval of alternative procedure on case-by-case basis.
The department may approve in writing, on a case-by-case basis, an alternative to a specific worker and public health protection requirement for an asbestos abatement project if the asbestos contractor or facility owner or operator submits a written description of the alternative procedure and demonstrates to the department's satisfaction that the proposed alternative procedure provides worker and public health protection equivalent to the protection that would be provided by the waived provisions.
Source: SL 1988, ch 284, § 16.
34-44-19. Rules for approval of training courses--Approval required to offer training.
The board shall promulgate rules pursuant to chapter 1-26 to provide for approval of courses that satisfy training requirements for asbestos contractors to meet in order to qualify for certification under this chapter. The board shall also by rule provide for mandatory courses that workers shall successfully complete to become certified under this chapter. No person may offer asbestos training without approval.
Source: SL 1988, ch 284, § 17.
34-44-20. Training approval requirements.
The approval requirements established by the board under § 34-44-19 shall reflect the level of training that a course provider shall offer to satisfy the certification requirements under § 34-44-10 and the certification requirements under § 34-44-14.
Source: SL 1988, ch 284, § 18.
34-44-21. Contents of training course.
In order to be approved under § 34-44-19, a training course shall at least include material relating to:
(1) The characteristics and uses of asbestos and the associated health hazards;
(2) Local, state, and federal standards and laws relating to asbestos abatement work practices;
(3) Methods to protect personal and public health from asbestos hazards;
(4) Air monitoring;
(5) Safe and proper asbestos abatement techniques; and
(6) Proper disposal of waste containing asbestos.
Source: SL 1988, ch 284, § 19.
34-44-22. Ability and proficiency of person providing training course to be demonstrated.
In addition to the requirements under § 34-44-21, the person providing a training course for which approval is sought shall demonstrate the person's ability and proficiency to conduct the training to the department's satisfaction.
Source: SL 1988, ch 284, § 20; SL 2011, ch 165, § 5.
34-44-23. Training course materials and records to be made available--Access to training sessions.
Any person providing approved asbestos abatement training shall make available to the department for audit purposes, at no cost to the department, all course materials, records, and access to training sessions.
Source: SL 1988, ch 284, § 21.
34-44-24. Procedure for submitting approval and renewal applications.
Applications for approval and renewals of approval shall be submitted according to procedures established by the board through rules promulgated pursuant to chapter 1-26.
Source: SL 1988, ch 284, § 22.
34-44-25. Suspension or revocation of training course approval.
The department may suspend or revoke training course approval if the provider fails to meet and maintain any standard established by the board.
Source: SL 1988, ch 284, § 23.
34-44-26. Rules for training reciprocity.
The board shall promulgate rules pursuant to chapter 1-26 to establish provisions for reciprocity to allow a worker or asbestos contractor trained in another state to use such training to satisfy South Dakota certification requirements, if the department finds that the training received in the other state would meet the requirements of this chapter.
Source: SL 1988, ch 284, § 24.
34-44-27. Rules adopting fee schedule--Amount of fees--Payment and deposit--Nonrefundability.
The board by rule promulgated pursuant to chapter 1-26 may adopt a fee schedule for those applying for certification not to exceed one hundred dollars for application for a new certification and not to exceed fifty dollars for a renewal of a certificate. The fees shall be paid to the department upon application for a certificate and shall be deposited in the environment and natural resources fee fund established pursuant to § 1-41-23. The fees are nonrefundable.
Source: SL 1988, ch 284, § 25; SL 1994, ch 23, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
34-44-29. Certification as bid requirement.
Any public agency requesting bids for a proposed asbestos project shall include as a bid requirement that any asbestos contractor providing a service be certified pursuant to this chapter.
Source: SL 1988, ch 284, § 27.
34-44-30. Responsibility of Department of Agriculture and Natural Resources.
The Department of Agriculture and Natural Resources shall be the agency responsible for coordinating asbestos hazard abatement and management activities for the state in order to assure compliance with state and federal laws.
Source: SL 1988, ch 284, § 28; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34-44-31. Inspection of asbestos abatement project--Entry without notice or warrant--Waiver requirement as condition of certification or approval.
The department may enter any asbestos abatement project during any time the asbestos contractor is conducting activity without notice or warrant for the purpose of inspections to determine compliance with this chapter. All records and documents necessary to determine compliance with this chapter shall be made available upon request without warrant to the department or its representative. The department shall require any person certified or approved under this chapter, as a condition of such certification or approval, to execute a waiver of any state or federal right relating to notice, hearing, or warrant regarding the inspections allowed by this section.
Source: SL 1988, ch 284, § 29.
34-44-32. Responsibility of counties for providing disposal sites.
Each county of the state shall be responsible for providing a disposal site for asbestos-containing materials which has been approved by the department. Such sites may include those made available through written agreements with other counties or subdivisions of government.
Source: SL 1988, ch 284, § 30.
34-44-33. Certain persons not required to be certified.
Persons who carry out action, as defined in the Asbestos Hazard Emergency Response Act of 1986 sections 203(f) and 204(c) are not required to be certified.
Source: SL 1988, ch 284, § 31.
34-44-34. Asbestos projects in progress--Temporary exemptions--Notice and application required--Denial of approval of project for noncompliance, etc.--Compliance with existing state and federal requirements.
Any worker or asbestos contractor who is conducting an asbestos project in a school building or who has entered into a contract to conduct an asbestos project in a school building on or before the effective date of this chapter is exempt from the certification requirements of this chapter until thirty days after the rules promulgated by the board are filed with the secretary of state. However, the worker or asbestos contractor shall notify the department of any asbestos project in progress, apply for certification and comply with state rules in existence on January 1, 1988, promulgated under chapter 34A-1 pertaining to asbestos. Any asbestos project done without notification, or if certification is ultimately denied, may be denied approval by the Governor as required in the Asbestos Hazardous Emergency Response Act of 1986.
Any worker or asbestos contractor who is conducting or who has entered into a contract to conduct an asbestos project other than in a school building on or before the effective date of this chapter is exempt from the certification requirements of this chapter until one hundred eighty days after the rules promulgated by the board are filed with the secretary of state. However, the worker or asbestos contractor shall comply with existing state rules promulgated under chapter 34A-1 pertaining to asbestos, and 29 C.F.R. 1910.134, 29 C.F.R. 1926.58, 40 C.F.R. 763.121 as in effect on January 29, 1988, and the United States Environmental Protection Agency publication entitled \"Guidance for Controlling Asbestos-containing Materials in Buildings\" (EPA 560/5-85-024, June 1985).
Source: SL 1988, ch 284, § 31A.