Attachment 2 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Title(s) of Legislation: Date Enacted: 

Exhibit A: Hazardous Waste Mgmt, SDCL ch. 34A-11 

Exhibit B: Dept. of Env. & Nat. Res., SDCL ch. 1-40 

Exhibit C: Admin. Proc. & Rules, SDCL ch. 1-26 

Exhibit D: Public Records & Files, SDCL ch. 1-27 

Exhibit E: Remedies for Prot. Of Env., SDCL ch. 34A-IO 

Exhibit F: Solid Waste Management, SDCL ch. 34A-6 

Exhibit G: Regulated Substance Discharges, SDCL ch. 34A-12 

1983, last amd. 2011 

1973, last amd. 2011 

1966, last amd. 2013 

1966, last amd. 2013 

1973, last amd. 2011 

1989, last amd. 201 I 

1988, last amd. 2011 

Exhibit A (Hazardous Waste Management Act, SDCL ch. 34A~11) contains the entire Act. 

All other Exhibits generally contain only the referenced and/or relevant statutes. 

Date Prepared: 7-7-2014 

Statutory Element 

I. DEFINITIONS 

Part 271 

Reference RCRACite State Cite 

Note that 40 CFR Part 271 does not specifically address deji11itio11s of terms. However, the Federal 

program relies 011 various definitions for establishing the applicability and scope oftlze hazardous waste 

regulations. If definitions of these terms appear in state statutes, they should be at least as stringellf as the 

analogous Federal statutory or regulatory deji11itio11. The State should have the authority to define the 

following terms in a ma1111er at least as stringent as the Federal program: 

Disposal NIA § 1004(3) SDCL 34A-l l-2(3) 

Generator NIA Not in RCRA; ARSD 74:28 :21 :02 (See Note 

see 40 CFR I below). 

260. 10 defn. 

Hazardous waste2 NIA § 1004(5) SDCL 34A-1 l-2(4) 

Manifest NIA § 1004(12) SDCL 34A-1 l-2(7) 

Person NIA § 1004(15) SDCL 34A-1 l-2(8) 

Storage NIA § 1004(33) SDCL 34A-l 1-2(10) 

Transport NIA Not in RCRA; ARSD 74:28:21 :02 (See Note 

see 40 CFR 1 below). 

260. 10 defn. of 

"transportation" 

Treatment NIA § 1004(34) SDCL 34A-11-2(11) 

Treatment, Storage or Disposal facility NIA NotinRCRA; ARSD 74:28:21 :02 (See Note 

see40 CFR 1 below). 

260. 10 defn. of 

"facility" 

Waste (solid) NIA § 1004(27) SDCL 34A-6-1.3(17) 

Remarks of the Attornev General/Independent Counsel: 

:Vote 1: ARSD 74:28:21:02 adopts by reference 40 CFR 260.10. Authority to adopt federal regulations by reference appears in SDCL l-26M6.6. 

Page 1 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 

Reference RCRA Cite State Cite 

II. HAZARDOUS WASTE IDENTIFICATION AND LISTING [See 40 CFR §271.9] 

I. Authority to adopt a set of 27I.9(a) §§ 300l(a), (b), 

characteristics for identifying (d), (e), (i) and 

hazardous waste and a list of 3018(b) 

hazardous wastes that are no less 

stringent than, and consistent 

with, the Federal program, and 

to control all hazardous wastes 

controlled under 40 CFR part 

261. 

2. Delisting (O[!tional}: Authority 271.9(b) § 300l(b) and 

to provide a delisting mechanism (f) 

with regulations that are 

equivalent to 40 CFR 260.20(b) 

and 260 .22 and that meets the 

requirements ofRCRA § 

3001 (f)(l) & (2) 

Remarks of the Attornev General/Independent Counsel: 

III. STANDARDS FOR GENERATORS [See 40 CFR §271.10] 

Authority to regulate all generators 271.10 §§ 3001, 3002, 

EPA regulates under 40 CFR Part 262 & 3017 

and to adopt requirements that are no 

less stringent than, and consistent with, 

the Federal generator requirements. 

Remarks of the Attorney General/Independent Couusel: 

IV. ST AND ARDS FOR TRANSPORTERS [See 40 CFR §271.11] 

Authority to regulate all transporters 271.11 § 3001 

EPA regulates under 40 CFR Part 263 § 3003 

and to adopt requirements that are no 

less stringent than, and consistent with, 

the Federal transporter requirements. 

Remarks of the Attorney General/Inde[!endent Counsel: 

SDCL 34A-l l-8; 1-40-4. l. 

SDCL 34A-l l-8; l-40-4.1. 

SDCL 34A-ll-9, -IO, -12, -

12.1, -13, -14 and-16; 1-40-

4.1. 

SDCL 34A-1 l-9,-10,-16; 1-

40-4.1. 

V. STANDARDS FOR HW STORAGE, TREATMENT, AND DISPOSAL FACILITIES [See 40 CFR 

Page 2 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element 

271.121 

1. Authority to regulate all owners 

and operators of hazardous 

waste management facilities that 

EPA regulates under 40 CFR 

Parts 264 and 266 and to adopt 

technical standards, 

requirements, and prohibitions 

that are no less stringent than, 

and consistent with, the Federal 

TSD facility requirements. 

2. Authority to require con-ective 

action in a mmmer that is no Jess 

stringent than, and consistent 

with, the Federal corrective 

action requirements. 

Part 271 

Reference 

271.12 

271.12 

Remarks of the Attorney General/Independent Counsel: 

RCRA Cite 

§ 3004 

§ 3004(u) and 

(v), and 

3004(a)(6) 

VI. LAND DISPOSAL RESTRICTIONS [See 40 CFR 271.25] 

Authority to enact land disposal 271.25 § 3004( d)-(g), 

restrictions that are no less stringent (j) and (m) 

than, and consistent with, the Federal 

land disposal restrictions in 40 CFR 

Pmi 268. 

Remarks of the Attorney General/Independent Counsel: 

State Cite 

SDCL 34A-1 l-9, -10, -12, -

12.1, -13, -14 and-16; 1-40-

4.1. 

SDCL 34A-l l-9, -14, -15, -16, 

-17,-18,and-19; 1-40-4.1. 

See also, SDCL 34A-12-1(8) 

(which includes hazardous 

wastes designated under SDCL 

34A-l 1-9 as "regulated 

substances") m1d the additional 

corrective action authorities in 

SDCL 34A-12-4, -6, -8, -9, -

10, -11, -12, -13, -13.1, -14.) 

SDCL 34A-l 1-9, -10, -12, -13, 

-14 and-16; 1-40-4.1. 

VII. PERMITS FOR HW STORAGE, TREATMENT AND DISPOSAL FACILITIES [Sec 40 CFR 

271.13 and 271.14] 

!. Authority to require permits for 271. l 3(a) § 3005(a) 

owners and operators of all TSD 

Page 3 of9 

SDCL 34A-11-9, -10, -12, -

12.1, -13, -14 and -16; 1-40-
2. 

3. 

4. 

5. 

6. 

7. 

SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 RCRA Cite State Cite Reference 

facilities in a manner that is no 4.1. 

less stringent than, and 

consistent with, the Federal 

pe1mit program under 40 CFR 

Parts 270 and 124. 

Authority to require permit 271. IJ(a) § 3005(b) SDCL 34A-1 l-9, -10, -12, -

application information 271.14 § 3005(c)(3) 12.1,-13,-14,and-16; 1-40-

(including exposure information) § 3005(g) 4.1. 

and to issue permits containing § 30!9(a) 

all technical and administrative 

standards for facilities and any 

conditions necessary to protect 

human health and environment 

Authority to provide for permit 271.13(d) § 3005(c) SDCL 34A-l 1-9, -12, -13, -14, 

modification and termination 271.14 § 3005(d) and-15; 1-40-4.1. 

(revocation) in a manner that is 

no less stringent than, and 

consistent with, the Federal 

program. 

Interim Status: Authority to 271.13(a) § 3005(e)(l) SDCL 34A-l J-9, -10, -12, and 

authorize owners or operators of -13; 1-40-4.1. 

TSD facilities to operate under 

interim status if the facility 

would qualify for interim status 

under the Federal program.

3 

Interim Status: Authority to 271.IJ(a) § 3005( e )(2) SDCL 34A-l J-9, -10, -12 and 

require interim status to and (3) -13; 1-40-4.1. 

terminate under conditions that 

are equivalent and consistent 

with the Federal program.

4 

Interim Status: Authority to 271.13(a) § 3005(e)(l) SDCL 34A-l l-9, -10, -12 and 

require interim status facilities to § 3005(h) -13; 1-40-4.1. 

comply with standards at least as § 3005(i) 

stringent as those in 40 CFR Part § 3015 

265. 

Interim Status: Authority to 271.13(a) § 3005(i) SDCL 34A-l l-9, -JO, -12, and 

require interim status -13; 1-40-4.1. 

impoundments to comply with 

the double liner, leachate 

collection and ground-water 

monitoring requirements 

applicable to new units or stop 

treating, receiving or storing 

Page 4 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 RCRA Cite Reference 

hazardous wastes. (SRl )

5 

8. (Optional): Authority to modify 271.13(a) § 3005(j)(2)-(9) 

the double liner, leachate and (j)(l 3) 

collection and groundwater 

monitoring requirements for 

impoundments in § 3005(j)( 1) if 

prior to October I, 1984, the 

owner/operator has entered into 

a consent decree, order, 

agreement with EPA or an 

authorized State which requires 

conection and provides 

protection of health and 

environment at least equivalent 

to that in § 3005(j)(l ). (SR2)5 

Remarks of the Attorney General/Independent Counsel: 

VIII. PUBLIC PARTICIPATION [See 40 CFR 271.14] 

Authority to adopt public participation 271.14(v)-(aa) § 7004(b) 

procedures for the permit process. 

Remarks of the Attorney General/Independent Counsel: 

State Cite 

SDCL 34A-11-9, -10, -11, -12, 

-13, -14, and-17. 

SDCL 34A-l l-9, -10, -12 and 

-13. 

See also, SDCL 1-26-27, 1-26-

16 et. seq.,; 34A-10-1 and -2; 

ARSD 74:09. 

IX. REQUIREMENTS FOR USED OIL MANAGEMENT [See 40 CFR 271.26] 

Authority to promulgate regulations 271.26 § 3014(a), (c) SDCL 34A-l l-9 and -13. 

establishing special generator and and (d)6 See also, SDCL 34A-1 l-10, -

transporter standards, perfom1ance 12, -14, and -16. 

standards, and other requirements as 

may be necessary to protect health and 

the environment from hazards 

associated with recycled used oil, as 

specified in 40 CFR Part 279.6 

Remarks of the Attorney General/Independent Counsel: 

X. INSPECTIONS [See 40 CFR 271.15] 

Authority to enter, inspect and obtain 271.IS(c) § 3007 SDCL 34A-l l-9, and -16. 

Page 5 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 RCRA Cite State Cite Reference 

samples (at all regulated premises and 

any location where records are kept). 

Remarks of the Attorney General/Independent Counsel: 

XI. ENFORCEMENT REMEDIES (INCLUDING PUBLIC PARTICIPATION IN 

ENFORCEMENT)7 [Sec 40 CFR 271.16] 

I. Authority to immediately 271.16(a)(l) § 3006 SDCL 34A-11-17, -19, andrestrain unauthorized activity. 23. 

See also, SDCL34A-10-1, -

11, -14, -16, and SDCL 34A12-lOand-11. 

2. Authority to sue to enjoin any 271.16(a)(2) § 3006 SDCL 34A-1 l-17, -19, andthreatened or continuing 23. 

program violation without prior See also, SDCL 34A-10-1, -

revocation of pennit. 11, -14, -16, and SDCL 34A12-lOand-ll. 

0 

~- Authority to obtain civil 271. l 6(a)(3)(i), § 3006 SDCL 34A-l l-9, -10, -12, and 

penalties for any violation (b), and (c) -14. 

(maximum no less than $1 OK 

per day). 

4. Authority to obtain criminal 2 71.16( a)(3 )(ii) § 3006 SDCL 34A-l l-21. 

penalties for specified maximum and (b) 

violations (no less than $1 OK per SDCL 22-6-1 (7) establishes the penalty 

day and imprisonment with for a Class 4 felony as ten years 

i111prison1nent in the state penitentiary, 

maximum no less than 6 and a fine of $20,000 1nay be imposed. 

months); burden of proof no 

greater than under Federal law 

5. Authority to allow public 271.16(d) § 7004 SDCL 34A-10-1 and-2. 

intervention. 

6. Optional: Require that neither Not required § 7002(g) 

the State nor citizens may bring § 7003(a) 

action against common carriers 

for imminent hazards arising 

after delivery of the shipment to 

the consignee, provided the 

carrier exercised due care when 

handling the work. 

Remarks of the Attorney General/Independent Counsel: 

XII. SHARING OF INFORMATION WITH EPA [See 40 CFR 271.17] 

Page 6 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 

Reference 

Authority to share all information with 271.17(a) 

EPA 

Remarks of the Attorney General/Independent Counsel: 

XIII. EXPOSURE ASSESSMENTS 

Authority to make exposure and health 

assessment information available to the 

Agency for Toxic Substances and 

Disease Re!jistry (See CERCLA § 

104(i)) (SI) 

Not in40 CFR 

Part 271 

Remarks of the Attorney General/Independent Counsel: 

XIV. RADIOACTIVE MIXED WASTE 

Authority to regulate hazardous waste 271.9(a) 

that is radioactive except to the extent 

that the waste is source, special nuclear, 

or byproduct material as defined by the 

Atomic Energy Act of 1954, as 

amended. (68 Stat. 923) (MW)5

• 

8 

Remarks of the Attorney General/Independent Counsel: 

RCRA Cite 

§ 3007(b) 

§ 3019(b)(l) 

§ 1004(27) 

XV. AVAILABILITY OF INFORMATION [See 40 CFR 271.17] 

Authority to make information about 

treatment, storage, and disposal 

facilities available to the public in 

substantially the same ma1111cr and to 

the same degree as if EPA were 

running the progran1 (AI)5 

271.17(c) 

Remarks of the Attorney General/Independent Counsel: 

§ 3006(f) 

XVI. ADDITIONAL MISCELLANEOUS AUTHORITIES 

1. Authority to grant variances and Not required 

exemptions that are no less 

stringent than allowed by 

NIA 

Page 7 of9 

State Cite 

SDCL 34A-l l-22, SDCL 1-

27-1, and-31(7). 

SDCL 34A-l l-22, SDCL 1-

27-1, and-31(7). 

SDCL 34A-l l-8 and-9. 

SDCL 34A-l l-22, and 1-27-1, 

-28 and -31. 

SDCL 34A-11-9 and 1-40-4.1. 
2. 

3. 

4. 

5. 

SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

Statutory Element Part 271 RCRA Cite State Cite Reference 

Subtitle C of RCRA.9 

Importation ban. 10 Not required NIA State requirements do not 

conflict with EPA's 

requirements. See SDCL 34A11-9, -12, -13, -14 and 1-40-

4.1. 

Siting. 11 Not required NIA State requirements do not 

conflict with EPA' s 

requirements. See SDCL 34A11-9, -12, -13, -14 and 1-40-

4.1. 

Authority to adopt existing NIA NIA SDCL 1-26-6.6 (current 

and/or future Federal regulations incorporation by reference). 

by reference (current and 

prospective incorporation by 

reference). 12 

Limitation on State authority to NIA NIA SDCL 1-40-4.1. 

adopt more stringent or broader . . . 

m scope prov1s10ns. 

Remarks of the Attorney General/Independent Counsel: 

Page 8 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

EXPLANATORY NOTES 

1. The statutory checklist is intended for use as an evaluation tool and to assist EPA to understand the 

State's enabling authority, as well as providing useful documentation for the State and EPA. The 

statutory checklist is not intended to identify State statutory provisions that are authorized to operate in 

lieu of the federal program, nor does it authorize the State statutory provisions listed in the checklist. It 

should not be referenced in a Federal Register notice authorizing a State's hazardous waste program; nor 

should it be referenced when the State's program is codified in 40 CFR part 272. 

2. The State must have authority to regulate the recycling and reuse of hazardous waste in a manner at least 

as stringent as the Federal program. 

3. States are not required to provide interim status for TSD facilities. However, if a State chooses to 

provide for interim status, then the State must have authority described in items 4 through 8 of Section 

VII. 

4. A State's analog to interim status must terminate automatically in these cases (whether the state's analog 

is Part 265 type standards or permits). If a State statute or regulation would require any type of hearing 

to terminate the facility's operating authority, the State must amend its authority to delete that 

requirement for these provisions. (Interim status as used here means the state's analog to Federal 

interim status.) 

5. The following items are a part of the "Statutory (Non-Checklisted) Provisions addressed in Appendix N 

of the hardcopy version of the State Authorization Manual (SAM)-- Guidance for State Authorization 

Issues: 

AI 

MW 

SI 

SRI 

SR2 

Availability of Information 

Mixed Waste 

Sharing of Information 

Surface Impoundment Requirement 

Optional: Exemptions from the Surface Impoundment Requirements) 

Also, see the Availability of Information Checklist for a specific analysis of the manner and degree that 

EPA provides for availability of information. 

6. This used oil management authority originated at RCRA § 3012, but was amended and redesignated as § 

3014(a) by HSWA. 

7. Note that RCRA contains enforcement provisions that differ from those listed in 40 CFR 271.16. Thus, 

the enforcement authority of an authorized State program need not be equivalent to the RCRA 

enforcement provisions. Instead, a State's authority should be adequate to meet the requirements listed 

in 40 CFR 271.16 which were established pursuant to RCRA §§ 3006 and 7004. 

8. EPA has detennined that hazardous wastes are subject to RCRA if they are mixed with source, special 

nuclear or byproduct material even though source, special nuclear, or byproduct itself is not subject to 

RCRA. States will need to review their authority to ensure that only source, special nuclear, or 

byproduct material is excluded from their hazardous waste jurisdiction. 

Page 9 of9 
SOUTH DAKOTA RCRA STATUTORY CHECKLIST 

(Abbreviated Version) 

9. Various HSW A provisions amend RCRA to allow EPA to grant variances and exemptions. In addition 

to those variances specifically authorized by statute, the HSWA allows EPA to develop regulations with 

variance provisions or to make case-by-case variance decisions. EPA strongly recommend States obtain 

the above authority. The State's variance procedures and decision criteria must be no less stringent than 

EPA's. 

I 0. May create problems for a State seeking authorization. States with this authority should ensure that its 

statutory and regulatory provisions do not conflict with EPA's requirements for imp01is/expo1is and 

transportation. 

11. May create problems for a State seeking authorization. States with this authority should ensure that its 

statutory and regulatory provisions do not conflict with EPA's requirements for permitting. 

12. For prospective incorporation of the Federal regulations by reference, the Attorney General or 

Independent Legal Counsel must cite State authority that enables it both to promulgate and enforce 

regulations in this manner. States which incorporate by reference prospectively, should provide a 

discussion on the constitutionality of the procedure within the State. Appropriate court case 

citations should also be provided. 

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