CHAPTER 38-21
AGRICULTURAL PESTICIDE APPLICATION
38-21-1 38-21-1 to 38-21-13. Repealed by SL 1974, ch 255, § 35.
38-21-14 Definitions.
38-21-14.1 38-21-14.1. Repealed by SL 2015, ch 204, § 24.
38-21-15 Repealed.
38-21-15.1 Bulk pesticide storage facility permit--Revocation of permit--Penalty.
38-21-15.2 Operation without permit--Civil penalty, injunctive, or declaratory relief.
38-21-15.3 Existing bulk pesticide storage--Alteration--Plans prepared--Rules prohibited.
38-21-15.4 Bulk pesticide storage facility--Promulgation of rules.
38-21-16 Pesticide incidents--Report of damage--Inspection by secretary.
38-21-17 Commercial applicator license--Annual fee--Violation as misdemeanor--Civil penalty.
38-21-17.1 Commercial applicator's license--Expiration.
38-21-18 Standards for certification of applicators--Promulgation of rules.
38-21-19 38-21-19. Repealed by SL 1976, ch 245, § 6.
38-21-20 Qualified applicants--Issuance of license--Denial of application.
38-21-21 Licensure--Denial or non-issuance--Written explanation.
38-21-22 Applicator's license--Restrictions.
38-21-23 Private applicator's license--Requirement--Fee--Promulgation of rules--Penalty for violation.
38-21-23.1 Private applicator's license--Expiration.
38-21-24 Private and commercial applicators--Records--Promulgation of rules.
38-21-25 38-21-25. Repealed by SL 1976, ch 245, § 6.
38-21-26 Repealed.
38-21-27 38-21-27 to 38-21-32. Repealed by SL 1991, ch 326, §§ 6 to 11.
38-21-33 Classes of certifications and licenses.
38-21-33.1 Pesticide dealer--Unlicensed operation--Misdemeanor--Civil penalty.
38-21-33.2 Physicians, veterinarians, and pharmacists--Exemption.
38-21-33.3 Pesticide applicators and government agencies--Exemption.
38-21-33.4 License required for outlets--Transitory locations prohibited.
38-21-33.5 Pesticide dealer's license--Fee--Form of application.
38-21-33.6 Denial, suspension, or revocation of dealer's license--Hearing.
38-21-33.7 38-21-33.7. Repealed by SL 1986, ch 332, § 7.
38-21-33.8 Pesticide dealer--Exemption.
38-21-33.9 Pesticide dealer's license--Expiration.
38-21-34 Applicator's license--Limitations.
38-21-35 Veterinarians --Exemption.
38-21-36 Research applications under laboratory conditions exempt.
38-21-37 Application without compensation--Exemption.
38-21-38 Repealed.
38-21-39 Restricted-use pesticide classifications--Promulgation of rules.
38-21-39.1 Unlicensed sale of restricted-use pesticide--Misdemeanor--Civil penalty.
38-21-39.2 Sale of restricted-use pesticide to unlicensed person--Misdemeanor--Civil penalty.
38-21-39.3 Unlicensed buying of restricted-use pesticide--Misdemeanor--Civil penalty.
38-21-40 Restricted-use pesticides--Licensure required--Restrictions--Criteria--Penalty.
38-21-41 Reciprocal waiver of examinations.
38-21-42 Renewal of license--Requirements--Exceptions.
38-21-43 Repealed.
38-21-44 Licensure action--Penalty.
38-21-44.1 Contemplated criminal proceedings--Notice--Opportunity to present views--Referral to state's attorney.
38-21-44.2 Obtaining voluntary compliance--Administrative settlement agreements.
38-21-45 Pesticide damage--Liability.
38-21-46 Notice of damage--Requirements--Exception.
38-21-47 Inspection of damages--Requirements.
38-21-48 Repealed.
38-21-49 Pesticide incident--Failure to report.
38-21-50 38-21-50. Repealed by SL 1987, ch 287, § 9.
38-21-50.1 Repealed.
38-21-50.2 Damages to injured person.
38-21-51 Administration and enforcement of chapter--Promulgation of rules.
38-21-52 Cooperation with other agencies.
38-21-53 Entry and inspection by secretary.
38-21-54 Repealed.
38-21-55 Cause of action--Injunction.
38-21-56 Notification of pesticide application--Promulgation of rules.
38-21-57 Pesticide regulatory fund--Administration and uses--Expenditures.
38-21-58 Application of pesticide--Licensed commercial applicator--Personal property.
38-21-14. Definitions.
Terms used in this chapter mean:
(1) \"Animals,\" all vertebrate and invertebrate species, including humans;
(2) \"Bulk pesticide,\" any volume of a pesticide, which is transported or held in an immediate reusable container, in undivided quantities greater than one hundred pounds net dry weight or fifty-five United States gallons liquid measure, but not including pesticides that are in the custody of the ultimate user and are fully prepared for use by the user;
(3) \"Bulk pesticide storage facility,\" any area, location, tract of land, building, structure, or premises, constructed in accordance with rules promulgated by the secretary, pursuant to chapter 1-26, for the storage of bulk pesticides;
(4) \"Certified applicator,\" any individual certified under this chapter to use any pesticide;
(5) \"Commercial applicator,\" a certified applicator, eighteen years of age or older, who uses pesticide, on any property, other than as a private applicator;
(6) \"Defoliant,\" any substance or mixture of substances intended to cause the leaves or foliage of a plant to drop, with or without causing abscission;
(7) \"Desiccant,\" any substance or mixture of substances intended to artificially accelerate the drying of plant tissue;
(8) \"Device,\" any instrument or contrivance intended for trapping, destroying, repelling, or mitigating insects, or for destroying, repelling, or mitigating fungi, weeds, rodents, or any other pests designated by the secretary, but not including:
(a) Equipment used for the application of pesticides, if sold separately; and
(b) Rodent traps;
(9) \"Environment,\" water, air, land, and all plants and animals living therein, and the interrelationships that exist among them;
(10) \"Equipment,\" any ground, water, or aerial equipment, or any device that uses motorized, mechanical, or pressurized power to apply pesticide, but not including a pressurized, hand-sized, household device that requires the person applying the pesticide to be the source of power or energy to make the pesticide application;
(11) \"Fungus,\" any nonchlorophyll-bearing thallophyte, except those on or in processed food, beverages, or pharmaceuticals, or those on or in living animals;
(12) \"Insect,\" any small invertebrate animal belonging to the class insecta or to other allied classes of arthropods;
(13) \"Labeling,\" any written, printed, or graphic matter:
(a) That is on the pesticide or device, or on any of its containers or wrappers;
(b) That accompanies the pesticide or device, at any time; or
(c) To which reference is made in literature that accompanies the pesticide or device, except for accurate, nonmisleading references to current publications of any government institution or agency of the United States, or of this or any other state, authorized by law to conduct research in the field of pesticides;
(14) \"Land,\" all land and water areas, including airspace, and all plants, animals, structures, buildings, contrivances, and machinery, appurtenant thereto or situated thereon, fixed or mobile, including any used for transportation;
(15) \"Pesticide dealer,\" a person who distributes:
(a) A restricted-use pesticide;
(b) A pesticide that is restricted in use or distribution, by regulation; or
(c) A pesticide that is to be applied to agricultural land and is provided in a container larger than one hundred gallons;
(16) \"Nematode,\" any invertebrate animal of the phylum ne-mathel-minthes or nematoda;
(17) \"Pest,\" any insect, rodent, nematode, fungus, weed, or other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in a living human or other living animal, which the secretary declares to be a pest;
(18) \"Pesticide,\" any substance or mixture of substances intended to:
(a) Prevent, destroy, repel, or mitigate any pest;
(b) Be used as a plant regulator, defoliant, or desiccant; or
(c) Be used as a spray adjuvant;
(19) \"Plant regulator,\" any substance or mixture of substances, intended, through physiological action, to accelerate or retard the rate of growth or rate of maturation, or for otherwise altering the behavior of ornamental or crop plants, or the produce thereof, but not including substances to the extent they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
(20) \"Private applicator,\" a certified applicator, eighteen years of age or older, who:
(a) Uses any pesticide, other than a restricted-use pesticide, for purposes of producing any agricultural commodity amounting to greater than one thousand dollars gross sales potential per year, on property owned or rented by the private applicator or the private applicator's employer;
(b) Uses any restricted-use pesticide for the purpose of producing any agricultural commodity on property owned or rented by the private applicator or the private applicator's employer;
(c) Applies any pesticide on the property of another, without compensation, other than the trading of personal services between producers of agricultural commodities; or
(d) Is not regularly in the business of applying pesticides for hire, as a principal or regular occupation, and is not held out to the public as a commercial applicator;
(21) \"Registrant,\" the person registering any pesticide in accordance with this chapter;
(22) \"Restricted-use pesticide,\" any pesticide classified as a restricted-use pesticide by the secretary;
(23) \"Rinsate,\" any solution containing pesticide residue, which is generated from the washing or flushing of pesticide containers and pesticide equipment;
(24) \"Secretary,\" the secretary of the Department of Agriculture and Natural Resources;
(25) \"Spray adjuvant,\" any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent, intended to be used with any other pesticide as an aid to the application or to the effect thereof, and which is in a package or container separate from that of the pesticide with which it is to be used;
(26) \"Unreasonable adverse effects on the environment,\" any unreasonable risk to humans or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide; and
(27) \"Weed,\" any plant that grows where it is not wanted.
Source: SL 1974, ch 255, § 1; SL 1975, ch 251, §§ 1, 3; SL 1976, ch 245, §§ 1, 2; SL 1985, ch 312, § 1; SL 1985, ch 377, § 2; SL 1986, ch 332, § 1; SL 1988, ch 316, § 1; SL 1991, ch 326, § 1; SL 1992, ch 283, § 1; SL 2011, ch 189, § 1; SL 2015, ch 203, § 20; SL 2020, ch 174, § 6; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021; SL 2023, ch 145, § 1; SL 2023, ch 146, § 1.
38-21-15. Repealed.
Source: SL 1974, ch 255, § 29; SL 1986, ch 326, § 41; SL 1987, ch 287, § 1; SL 1991, ch 326, § 2; SL 2020, ch 174, § 7.
38-21-15.1. Bulk pesticide storage facility permit--Revocation of permit--Penalty.
No person may establish or operate a bulk pesticide storage facility without obtaining a bulk pesticide storage facility permit from the secretary. If a bulk pesticide storage facility is operating in violation of the permit requirements established in rules promulgated under this chapter, the secretary may grant a reasonable period of time for the facility to comply with the rules. If the facility does not comply with the rules in the prescribed period of time, the secretary shall revoke the operating permit pursuant to chapter 1-26. A violation of this section is a Class 1 misdemeanor.
Source: SL 1986, ch 332, § 3; SL 2020, ch 173, § 33.
38-21-15.2. Operation without permit--Civil penalty, injunctive, or declaratory relief.
Notwithstanding any other provision of this chapter, any person who operates a bulk storage facility without a permit or violates the bulk pesticide storage facility permit provision of this chapter is subject to a civil penalty not to exceed five hundred dollars for each day of violation. In addition, the secretary may enforce the provisions of this chapter by means of injunctive and declaratory relief in circuit court.
Source: SL 1986, ch 332, § 4; SL 2020, ch 173, § 34.
38-21-15.3. Existing bulk pesticide storage--Alteration--Plans prepared--Rules prohibited.
The secretary may not promulgate a rule requiring that plans, specifications, and supporting information submitted for an alteration of an existing bulk pesticide storage facility or the construction of a new site be prepared by a registered professional engineer. Nothing in this section prohibits an operator of a bulk pesticide storage facility from voluntarily having the plans, specifications, and supporting information prepared by a registered professional engineer.
Source: SL 1986, ch 332, § 11; SL 2020, ch 173, § 35.
\r\n \r\n 38-21-15.4\r\n \r\n . \r\n Bulk pesticide storage facility--Promulgation of rules.\r\n
\r\n\r\n The secretary may promulgate rules, pursuant to chapter \r\n \r\n 1-26\r\n \r\n , providing for a bulk pesticide storage facility permit system and operational requirements necessary for secondary containment of bulk pesticide for the protection of the environment and human health. The secretary may require that appropriate plans and specifications for construction and operation of a bulk pesticide storage facility be submitted for approval prior to the issuance, modification, suspension, or revocation of a permit.\r\n
\r\n\r\n \r\n
\r\n\r\n Source: \r\n SL 2020, ch 173, § 36.\r\n
\r\n38-21-16. Pesticide incidents--Report of damage--Inspection by secretary.
Any person may report damage from the use of a pesticide or any alleged pesticide incident to the secretary on a form provided by the secretary, with a written statement, within thirty days after the date the damage was observed or the incident occurred. Any person alleging damage shall permit the secretary to inspect, during reasonable hours, the lands where the alleged damage or incident occurred, or any organism is alleged to have been damaged.
Source: SL 1974, ch 255, § 19; SL 1986, ch 326, § 42; SL 2020, ch 174, § 8.
38-21-17. Commercial applicator license--Annual fee--Violation as misdemeanor--Civil penalty.
No person may perform any of the following acts without a commercial applicator's license issued by the secretary, unless exempt under the provisions of this chapter:
(1) Engage in the business of applying pesticides to the lands of another;
(2) Advertise as being in the business of applying pesticides to the lands of another at any time;
(3) Apply pesticides while in the performance of duties as a governmental employee; or
(4) Otherwise act as a commercial applicator.
The secretary shall require a fee of thirty-five dollars for each commercial applicator license issued. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1951, ch 112, § 1; SL 1951, ch 113, § 1; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B01 (1), (3); SDCL, §§ 38-21-1, 38-21-2; SL 1974, ch 255, § 8; SL 1987, ch 287, § 2; SL 1991, ch 326, § 3; SL 2001, ch 215, § 20; SL 2020, ch 175, § 3.
38-21-17.1. Commercial applicator's license--Expiration.
A commercial applicator's license expires on March thirty-first of the second year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 38-21-44.
Source: SL 2020, ch 175, § 4; SL 2023, ch 145, § 2.
38-21-18. Standards for certification of applicators--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to prescribe standards for the certification of all applicators of pesticides. The standards shall relate to the use and handling of pesticides, or to the use and handling of the pesticide or class of pesticides covered by the individual's certification, and shall relate to the hazards involved. In determining these standards, the secretary shall consider the standards of the federal Environmental Protection Agency.
Source: SL 1974, ch 255, § 6; SL 1986, ch 326, § 43; SL 2020, ch 173, § 37.
38-21-20. Qualified applicants--Issuance of license--Denial of application.
If the secretary finds the applicant qualified to apply pesticides in the classifications for which the applicant applied, after such examinations as the secretary shall require by regulation, and if the applicant applying for a license to engage in aerial application of pesticides has met all the requirements of the Federal Aviation Agency, the Aeronautics Commission of this state, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the secretary shall issue an applicator's license limited to the classifications for which the applicant is qualified. The secretary may deny any application for any applicator's license if the secretary finds that the applicant has violated any provisions of this chapter.
Source: SL 1974, ch 255, § 9; SL 1976, ch 245, § 3; SL 2020, ch 173, § 38.
38-21-21. Licensure--Denial or non-issuance--Written explanation.
If any applicator's license is denied or not issued as applied for, the secretary shall inform the applicant in writing of the reasons for the denial or non-issuance.
Source: SL 1974, ch 255, § 9; SL 2020, ch 173, § 39.
38-21-22. Applicator's license--Restrictions.
The secretary may limit the license of any applicant to the use of certain pesticides, or to certain areas, or to certain types of equipment based upon the applicant's qualifications.
Source: SL 1974, ch 255, § 9; SL 2020, ch 173, § 40.
38-21-23. Private applicator's license--Requirement--Fee--Promulgation of rules--Penalty for violation.
No private applicator may use any pesticide without a license and without first complying with the certification requirements determined by the secretary as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. The secretary may require a license fee, to be established in rules promulgated pursuant to chapter 1-26 not to exceed twenty-five dollars. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1974, ch 255, § 13; SL 1986, ch 326, § 44; SL 1987, ch 287, § 3; SL 1991, ch 326, § 4; SL 2020, ch 175, § 5.
38-21-23.1. Private applicator's license--Expiration.
A private applicator's license expires on March thirty-first of the third year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 37-21-44.
Source: SL 2020, ch 175, § 6; SL 2023, ch 145, § 3.
38-21-24. Private and commercial applicators--Records--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to require private and commercial applicators to maintain any pesticide application records the secretary determines are necessary.
Source: SL 1974, ch 255, § 23; SL 1986, ch 326, § 45; SL 1991, ch 326, § 5; SL 2020, ch 173, § 41.
38-21-26. Repealed.
Source: SL 1953, ch 93, § 2; SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-9; SL 1974, ch 255, § 9; SL 1977, ch 309, § 1; SL 1986, ch 332, § 5; SL 2001, ch 215, § 21; SL 2020, ch 175, § 7.
38-21-33. Classes of certifications and licenses.
The secretary may further classify or subclassify certifications to be issued under this chapter. The classifications may include soil fumigation, nonsoil fumigation, pest control operators, ornamental or agricultural pesticide applicators, and right-of-way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides or to the use of pesticides to control insects and plant diseases, rodents or weeds. Each classification shall be subject to separate testing procedures and requirements.
Source: SL 1974, ch 255, § 4; SL 2020, ch 174, § 9.
38-21-33.1. Pesticide dealer--Unlicensed operation--Misdemeanor--Civil penalty.
No person may act as a pesticide dealer or advertise as a pesticide dealer at any time without first obtaining a pesticide dealer's license issued by the secretary. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1975, ch 251, § 4; SL 1977, ch 190, § 328; SL 1987, ch 287, § 5; SL 2001, ch 215, § 22; SL 2020, ch 173, § 42.
38-21-33.2. Physicians, veterinarians, and pharmacists--Exemption.
Any licensed physician, veterinarian, or pharmacist is exempt from the provisions of § 38-21-33.1 if less than three percent of total sales is derived from the sale of pesticides.
Source: SL 1975, ch 251, § 4; SL 2020, ch 173, § 43.
38-21-33.3. Pesticide applicators and government agencies--Exemption.
The provisions of § 38-21-33.1 do not apply to any commercial pesticide applicator who sells pesticides only as an integral part of an application service if the pesticides are dispensed only through equipment used for pesticide application, or any federal, state, county, or municipal agency that provides pesticides only for the agency's own programs.
Source: SL 1975, ch 251, § 6; SL 1977, ch 309, § 2; SL 2020, ch 173, § 44.
38-21-33.4. License required for outlets--Transitory locations prohibited.
A pesticide dealer's license is required for each location or outlet located within this state from which pesticides are distributed. A manufacturer, registrant, or distributor who has no location licensed within this state, but who distributes pesticides directly into this state shall obtain a pesticide dealer license for the principal out-of-state location or outlet of the manufacturer, registrant, or distributor. A licensed location may not be transitory.
Source: SL 1975, ch 251, § 4; SL 2020, ch 173, § 45.
38-21-33.5. Pesticide dealer's license--Fee--Form of application.
An application for a pesticide dealer's license shall be accompanied by a seventy-five dollar license fee and shall be on a form prescribed by the secretary.
Source: SL 1975, ch 251, § 5; SL 2001, ch 215, § 23; SL 2020, ch 175, § 8.
38-21-33.6. Denial, suspension, or revocation of dealer's license--Hearing.
A pesticide dealer's license is subject to denial, suspension, or revocation after a hearing, pursuant to chapter 1-26, for any violation of this chapter if the violation was committed by the dealer, or by the dealer's officer, agent, or employee.
Source: SL 1975, ch 251, § 8; SL 2020, ch 173, § 46.
38-21-33.8. Pesticide dealer--Exemption.
Any person holding a pesticide dealer's license pursuant to § 38-21-33.1 is exempt from purchasing a poison license for any pesticide listed as a poison under chapter 34-20 and from maintaining a poison register as required in §§ 34-20-4 and 34-20-5.
Source: SL 1986, ch 282; SL 2020, ch 173, § 47.
38-21-33.9. Pesticide dealer's license--Expiration.
A pesticide dealer's license expires on March thirty-first of the second year following the year of issuance, unless the license is revoked before the expiration, by the secretary, as provided for in § 38-21-44.
Source: SL 2020, ch 175, § 9; SL 2023, ch 145, § 4.
38-21-34. Applicator's license--Limitations.
No applicator may hold more than one applicator's license simultaneously. Any private applicator's license held by a commercial applicator shall become invalid upon issuance of a commercial applicator's license by the secretary.
Source: SL 1955, ch 73; SDC Supp 1960, § 22.12B05; SDCL, § 38-21-10; SL 1974, ch 255, § 5; SL 2020, ch 174, § 10.
38-21-35. Veterinarians --Exemption.
The licensing requirements of this chapter do not apply to a licensed veterinarian applying pesticides other than restricted-use pesticides to animals during the normal course of the veterinarian's practice if the veterinarian is not principally or regularly engaged in the business of applying pesticides and is not publicly identified as a pesticide applicator.
Source: SL 1974, ch 255, § 27; SL 2020, ch 173, § 48.
38-21-36. Research applications under laboratory conditions exempt.
The licensing requirements of this chapter shall not apply to research personnel applying pesticides under laboratory conditions.
Source: SL 1974, ch 255, § 28; SL 1976, ch 245, § 5.
38-21-37. Application without compensation--Exemption.
The licensing requirements of this chapter do not apply to any person using hand-powered equipment to apply pesticides, other than restricted-use pesticides, to lawns, or to ornamental shrubs and trees not in excess of twelve feet high, if applied without compensation.
Source: SL 1974, ch 255, § 26; SL 1991, ch 326, § 12; SL 2020, ch 173, § 49.
38-21-39. Restricted-use pesticide classifications--Promulgation of rules.
For the purpose of uniformity and in order to enter into cooperative agreements, the secretary may promulgate rules, pursuant to chapter 1-26, adopting restricted-use pesticides classifications as determined by the federal Environmental Protection Agency, to determine state restricted-use pesticides, to restrict the use of certain pesticides, or to disallow the use of certain pesticides within the state or within designated areas of the state.
Source: SL 1974, ch 255, § 3; SL 1986, ch 326, § 47; SL 1991, ch 326, § 14; SL 2020, ch 173, § 50.
38-21-39.1. Unlicensed sale of restricted-use pesticide--Misdemeanor--Civil penalty.
No person without a pesticide dealer's license issued by the secretary under the provisions of this chapter may sell any restricted-use pesticide to any person. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1975, ch 251, § 9; SL 1977, ch 190, § 329; SL 1987, ch 287, § 6; SL 1988, ch 316, § 2; SL 1991, ch 326, § 15; SL 2020, ch 173, § 51.
38-21-39.2. Sale of restricted-use pesticide to unlicensed person--Misdemeanor--Civil penalty.
No pesticide dealer may sell a restricted-use pesticide to any person who is not licensed under this chapter. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund. Any pesticide dealer is responsible for acts committed by the pesticide dealer's officers, agents, or employees under the civil penalty provisions of this section.
Source: SL 1988, ch 316, § 3; SL 2020, ch 173, § 52.
38-21-39.3. Unlicensed buying of restricted-use pesticide--Misdemeanor--Civil penalty.
No person without a license issued under this chapter may buy any restricted-use pesticide. A violation of this section is a Class 2 misdemeanor. In addition to any criminal penalty, any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1988, ch 316, § 4; SL 1991, ch 326, § 16; SL 2020, ch 173, § 53.
38-21-40. Restricted-use pesticides--Licensure required--Restrictions--Criteria--Penalty.
No person may use any restricted-use pesticide without that person first complying with the licensing requirements of this chapter and any other restrictions as may be determined by the secretary, pursuant to § 38-21-39, as necessary to prevent unreasonable adverse effects on the environment, including injury to the applicator or other persons, for that specific pesticide use. In determining restrictions, the secretary shall, pursuant to § 38-21-39, consider the characteristics of the pesticide formulation such as the acute dermal inhalation toxicity; the persistence, mobility, and susceptibility to biological concentration; the use experience which may reflect an inherent misuse of an unexpected good safety record which does not always follow laboratory toxicological information; the relative hazards of patterns of use such as granular soil applications, ultra-low volume or dust aerial applications, or air blast sprayer applications; and the extent of the intended use. Any person who violates this section is subject to a civil penalty not to exceed five thousand dollars per violation. Any civil penalty under this section shall be imposed by the circuit court. Any civil penalty collected shall be deposited into the state general fund.
Source: SL 1974, ch 255, § 7; SL 1987, ch 287, § 7; SL 2020, ch 174, § 12.
38-21-41. Reciprocal waiver of examinations.
The secretary may waive any examination requirement under any provision of this chapter on a reciprocal basis with any other state which has substantially the same standards.
Source: SL 1974, ch 255, § 24; SL 2020, ch 173, § 54.
38-21-42. Renewal of license--Requirements--Exceptions.
Any person holding a current valid license may renew the license for the next biennium without taking another examination unless the secretary determines that additional knowledge related to classifications for which the applicant has applied makes a new examination necessary or if additional demonstration of qualifications is determined necessary for a person who has had a license suspended or revoked or has had one or more previous violations of this chapter. Any person whose license has expired and has not been renewed in accordance with this chapter before the expiration, shall be required to take the examination to obtain a new license.
Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 8; SL 1988, ch 316, § 5; SL 2001, ch 215, § 24; SL 2020, ch 174, § 13.
38-21-43. Repealed.
Source: SL 1974, ch 255, § 15; SL 1986, ch 332, § 9; SL 2001, ch 215, § 25; SL 2020, ch 175, § 10.
38-21-44. Licensure action--Penalty.
The secretary, pending examination and after notice and opportunity for a hearing, pursuant to chapter 1-26, may suspend, revoke, deny, or modify any provision of any license issued under this chapter and held by the violator, if the secretary finds that the holder or applicant has committed any of the following acts, each of which is declared to be a violation of this chapter:
(1) Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;
(2) Made a pesticide recommendation or application inconsistent with the labeling, or mixed, loaded, stored, transported, disposed, displayed, or handled a pesticide or pesticide container inconsistent with the product label or labeling, provided a deviation may include:
(a) The loading and handling of the manufacturer's unbroken immediate container; and
(b) Actions permitted under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136(ee), as amended through January 1, 2023;
(3) Applied known ineffective or improper materials;
(4) Operated faulty or unsafe equipment;
(5) Operated in a faulty, careless, or negligent manner;
(6) Neglected or, after notice, refused to comply with this chapter, rules adopted under this chapter, or any lawful order of the secretary;
(7) Refused or neglected to keep and maintain records required by this chapter, or to make reports as required;
(8) Made false or fraudulent records, invoices, or reports;
(9) Engaged in the business of applying a pesticide on the lands of another, without having a license or certification required by this chapter;
(10) Used fraud or misrepresentation in applying for or renewing a license or certification;
(11) Refused or neglected to comply with any limitations or restrictions listed on an issued license;
(12) Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, conspired with such a person to evade the provisions of this chapter, or allowed one's license or certification to be used by another person;
(13) Made false or misleading statements to the secretary or the secretary's agents during an inspection or investigation conducted under this chapter;
(14) Impersonated any federal, state, county, or city inspector or official;
(15) Failed to maintain the aerial requirements, as provided for in § 38-21-20;
(16) Transported, stored, used, disposed of, or handled any pesticide, pesticide container, rinsate, or application equipment in a manner that:
(a) Endangers or causes injury or damage to humans, vegetation, crops, livestock, wildlife, or beneficial insects; or
(b) Pollutes groundwater or surface water; or
(17) Violated agricultural pesticide application laws of any other state or violated federal agricultural pesticide application laws while in any other state.
In addition to the administrative sanctions available to the secretary pursuant to this section, a violation of this section is a Class 2 misdemeanor.
Any person who violates this section is also subject to a civil penalty, not to exceed five thousand dollars per violation. A civil penalty under this section must be imposed by the circuit court.
Any civil penalty collected must be deposited into the state general fund.
The secretary is not required to seek the administrative sanctions available under this section before referring charges or commencing any action against an alleged violator of this section.
Source: SL 1951, ch 113, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B07; SDCL, § 38-21-12; SL 1974, ch 255, § 16; SL 1986, ch 332, § 10; SL 1987, ch 287, § 8; SL 1990, ch 321; SL 1991, ch 326, § 17; SL 2020, ch 174, § 14; SL 2023, ch 145, § 5.
38-21-44.1. Contemplated criminal proceedings--Notice--Opportunity to present views--Referral to state's attorney.
If it appears from an examination pursuant to this chapter that there has been a violation of this chapter, and the secretary contemplates a referral to the state's attorney for criminal proceedings against a person, the secretary shall notify that person in writing. A person so notified may present the person's views within thirty days of receiving notice, either orally or in writing, with regard to the contemplated proceedings. If, in the opinion of the secretary, it appears that this chapter has been violated by the person, the secretary shall refer the facts to the state's attorney for the county in which the violation occurred with a copy of the results of the analysis, the examination of the pesticide or device or any other relevant evidence, and information in the possession of the secretary. This referral by the secretary is not required if it appears to the secretary that the violation is minor, and the secretary believes that the public will be best served by a written warning.
Source: SL 2020, ch 174, § 15.
38-21-44.2.Obtaining voluntary compliance--Administrative settlement agreements.
Nothing in this chapter prevents the department from obtaining voluntary compliance with the provisions of this chapter through a conference, settlement, or any other appropriate means. The secretary may enter into an administrative settlement agreement regarding any violation of the provisions of this chapter including stipulated settlements of any civil penalty or administrative sanction authorized under this title.
Source: SL 2020, ch 174, § 16.
38-21-45.Pesticide damage--Liability.
Nothing in this chapter may be construed to relieve any person from liability for any damage to another caused by the use of pesticides even though the use conforms to the rules promulgated under the authority of this chapter.
Source: SL 1974, ch 255, § 34; SL 2020, ch 174, § 17.
38-21-46.Notice of damage--Requirements--Exception.
Any person claiming damages from any use of a pesticide shall notify by certified mail the pesticide applicator of the alleged damage within the earlier of:
(1) Thirty days after the date that the damages were observed or should have been observed; or
(2) If a growing crop is alleged to have been damaged, before the time that twenty-five percent of the crop has been harvested or destroyed.
This section does not apply if the person seeking reimbursement for damage was the applicator of the pesticide.
Source: SL 1974, ch 255, § 20; SL 1991, ch 326, § 18; SL 2020, ch 174, § 18.
38-21-47.Inspection of damages--Requirements.
Upon notifying the applicator as required under § 38-21-46, the person seeking reimbursement for the alleged damage shall permit the applicator and up to four representatives of the applicator to enter the person's property during reasonable hours for the purpose of observing and examining the alleged damage. If the person fails to allow entry, the person is barred from asserting a claim against the applicator.
Source: SL 1974, ch 255, § 20; SL 2020, ch 174, § 19.
38-21-49. Pesticide incident--Failure to report.
The failure to report an incident in accordance with the provisions of § 38-21-16 is not a violation of this chapter. If the person failing to file a report is the only one injured from the use or application of a pesticide by others, the secretary may, when in the public interest, refuse to hold a hearing for the suspension, modification, or revocation of a license issued under this chapter.
Source: SL 1974, ch 255, § 21; SL 2020, ch 174, § 21.
38-21-50.1. Repealed.
Source: SL 1985, ch 377, § 4; SL 1987, ch 287, § 10; SL 1991, ch 326, § 19; SL 2020, ch 174, § 22.
38-21-50.2. Damages to injured person.
Civil penalties specified in §§ 38-21-15.2, 38-21-17, 38-21-23, 38-21-33.1, 38-21-39.1, 38-21-39.2, 38-21-39.3, 38-21-40, and 38-21-44 do not lessen the damages that may be awarded to any person injured.
Source: SL 1987, ch 287, § 11; SL 1991, ch 326, § 20; SL 2020, ch 174, § 23.
38-21-51. Administration and enforcement of chapter--Promulgation of rules.
The secretary may promulgate rules pursuant to chapter 1-26 providing for:
(1) The inspection of storage and disposal areas;
(2) The inspection of application equipment and equipment storage areas;
(3) The establishment of restricted pesticide uses or methods of distribution;
(4) Standards for the use, transportation, storage, handling, and disposal of pesticides or pesticide containers, rinsate, and application equipment;
(5) The reporting of pesticide accidents and incidents;
(6) Standards for the certification of applicators of pesticides;
(7) Standards for the examination and testing of applicators of pesticides;
(8) The establishment of fees for a private applicator's license not to exceed twenty-five dollars per license;
(9) Pesticide applicator reporting and record keeping requirements;
(10) The establishment of state restricted-use pesticides for designated areas within the state;
(11) Pesticide dealers reporting and record keeping requirements;
(12) The establishment of certification categories and sub-categories;
(13) The classification or sub-classification of licenses; and
(14) The use of pesticides through irrigation systems.
Source: SL 1949, ch 87, § 6; SL 1951, ch 112, § 3; SL 1953, ch 93, § 2; SDC Supp 1960, § 22.12B06; SDCL, § 38-21-11; SL 1974, ch 255, § 2; SL 1986, ch 326, § 48; SL 2020, ch 175, § 11.
38-21-52. Cooperation with other agencies.
The secretary may cooperate, receive grants-in-aid, and enter into agreements with any agency of the federal government, of this state or its subdivisions, or with any agency of another state, to obtain assistance in the implementation of this chapter; to secure uniformity of regulations; to cooperate in the enforcement of the federal pesticide control laws through the use of state or federal personnel and facilities and to implement cooperative enforcement programs; to develop and administer state programs for training and certification of certified applicators consistent with federal standards; to contract for training with other agencies including federal agencies for the purpose of training certified applicators; to contract for monitoring pesticides for the national plan; to prepare and submit state plans to meet federal certification standards and issuance of experimental permits; and to regulate certified applicators.
Source: SL 1974, ch 255, § 14; SL 2020, ch 173, § 55.
38-21-53. Entry and inspection by secretary.
To perform any duty pursuant to the provisions of this chapter, the secretary may enter any public or private premises at any reasonable time to inspect any pesticide-related equipment and the premises on which the equipment is kept or stored, to inspect lands actually or reportedly exposed to pesticides, to inspect storage or disposal areas, to investigate complaints of injury to humans or land, to examine any records required to be maintained pursuant to this chapter, or to sample pesticides being applied or to be applied. The secretary may apply to any court of competent jurisdiction for a search warrant authorizing access to any land or premises to which the secretary may be denied access.
Source: SL 1974, ch 255, § 31; SL 2020, ch 173, § 56.
38-21-55. Cause of action--Injunction.
The secretary may cause an action to commence in any court of competent jurisdiction to enjoin the violation or threatened violation of any provision of this chapter.
Source: SL 1974, ch 255, § 33; SL 2020, ch 173, § 58.
38-21-56. Notification of pesticide application--Promulgation of rules.
The secretary may promulgate rules, pursuant to chapter 1-26, to require posting of pesticide application sites and notifying the public or other individuals who may be affected by a pesticide application that has occurred or will occur in the future.
Source: SL 1992, ch 284, § 1; SL 2020, ch 173, § 59.
38-21-57. Pesticide regulatory fund--Administration and uses--Expenditures.
Funds collected pursuant to §§ 38-21-17, 38-21-23, and 38-21-33.5 shall be deposited in a special revenue fund hereby created in the state treasury known as the pesticide regulatory fund. This fund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and the fees received pursuant to this chapter. The fund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the pesticide program. Expenditures from the fund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the fund until appropriated by the Legislature.
Source: SL 1993, ch 304, § 3; SL 2020, ch 173, § 60; SL 2020, ch 175, § 12.
38-21-58. Application of pesticide--Licensed commercial applicator--Personal property.
Any commercial applicator who is licensed pursuant to this chapter to apply pesticides to agricultural land may apply pesticides to property owned by the applicator without a private applicator's license if the commercial categories in which the applicator is licensed are the appropriate applications to be made. Any applicator shall abide by all state and federal rules and regulations pertaining to private applicator pesticide application when applying pesticides on the applicator's own property.
Source: SL 2013, ch 194, § 1; SL 2020, ch 174, § 24.