MARTY J. JACKLEY ATIORNEY GENERAL


### January 18,2011

James B. 

### Martin Regional Administrator STATE OF SOUTH DAKOTA



### OFFICE OF ATTORNEY GENERAL 1302 East Highway 14, Suite 1 Pierre, South Dakota 57501-8501 Phone (605) 773-3215

Fax (605) 773-4106 TTY (605) 773-6585 www.state.sd.us/atg



### U.S. Environmental ProtectionAgency Region VIII 1595 Wynkoop Street Denver, CO 80202-1129
Re: State of South Dakota'sState Implementation PlanforRegionalHaze LegalAuthorityandCompliance withProceduralRequirements
Dear Mr. Martin: CHARLES D. McGUIGAN CHIEF DEPUTY ATIORNEY GENERAL



### Atthe request ofthe State ofSouthDakota DepartmentofEnvironment andNatural Resources ("DENR"), Ihave reviewedthe relevant elements ofthe South DakotaRegional Haze State ImplementationPlanprepared and submitted by DENRto the United States Environmental ProtectionAgency ("EPA"). Thisletter confirms that DENRhas legal authority to carry outthe State Implementation Plan for Regional Haze and adoptthe administrative rules described inthat Plan; confirms thatDENRhas compliedwiththe proceduralrequirements applicable to the adoption ofthe administrative rules; and identifies and provides a copy ofthe sources of DENR'sauthority to implement and enforce applicable statutes and rules as requiredby40 C.F.R.51.230. This letteris provided for inclusioninthe DENR's SIP submission concerning Regional Haze toEPAto satisfythe requirement of42 U.S.C. 7410(a)(2)(E).


### 1. Legal Authorityto Adopt.
DENR is an agency ofthe State ofSouth Dakota, createdbythe South DakotaLegislature. SDCL 1-40-1. One.ofits functions is the development and implementation ofthe State'sAir PollutionControl Program, established by the Legislature in SDCL ch. 34A-1. SDCL 1-40-24.
The BoardofMinerals and Environment ("BME") is a board within DENR. SDCL 1-40-25 and -25.1. The Secretary ofDENRis responsible for the administration ofthe provisions ofSDCL

### James 

### B. Martin January 18,2011 Page 2

ch. 34A-1, except for quasi-judicial and quasi-legislative functions, which are the responsibility ofthe BME. SDCL 34A-l-S.
The Legislature establishedthe State'sAir Pollution Control Program. SDCL 34A-1-1 states:
It

### ishereby declaredto be the public policy ofthe state to achieve and maintain reasonable levels ofair quality which will protecthumanhealth and safety, preventinjuryto plant and animal life and property, foster the comfort and convenience ofits inhabitants, promotethe economic and social development of the state and, to the greatest degree practicable, facilitate the enjoymentofthe natural attractions ofthe state. It

### is also declared thatlocal andregional air pollution control programs are to be supported to the extentpracticable as essentialinstruments for the securing and maintenance ofappropriate levels ofair quality. To these ends it

### is thepurpose of this chapter toprovide for a coordinatedstate-wideprogram of airpollutionprevention, abatementand control, for an appropriate distribution ofresponsibilities among the state and local units ofgovernment, andto facilitate cooperation acrossjurisdictional lines in dealing withproblems ofair pollutionnot confined within singlejurisdictions, and to provide a framework within which all values maybe balanced inthepublic interest.
SDCL 34A-1-1 (emphasis added.)
The BMEis authorizedbythe Legislatureto adopt administrative rules. SDCL 34A-1-S. (BME is to perform any quasi-legislative functions ofSDCL ch. 34A-1; the adoption ofadministrative rules is a quasi-legislation function.) The Legislature has set outthe specific areas regarding which administrative rules maybe adopted. SDCL 34A-1-6 authorizes the Board to promulgate rules to, inter alia, establish ambient air standards, require records, installationofmonitoring equipment, emission samplingmethodology, procedures for attainment and maintenance of ambient air quality standards, and the monitoring ofambient air quality. SDCL 34A-1-11 authorizes the BMEto "classify air contaminant sources according to levels andtypes of emissions and other characteristics whichrelate to air pollution" and establish reporting requirements for any such class or classes. SDCL 34A-l-ISrequires the BMEto promulgate rules establishing "ambient air quality standards for the state as a whole orfor anypart ofthe state."
In addition, SDCL**34A~**

### 1-21 provides specific authority for the BMEto prohibit,'byrule, "the installation, alteration,.or use ofany machine, equipment, device, or other article which itfinds may cause or contribute to air pollution or is intended primarilyto prevent or controlthe emission ofair pollutants, unless apermitthereforhas beenobtained from the board orthe secretary." The BMEis also explicitly authorized to adopt rules setting forth application requirements, includingthe submission ofplans, specifications, "and such other information as the board deems necessary." SDCL 34A-1-21.

### James 

### B. Martin January 18,2011 Page 3

These statutes provide legal authority to the BMEto adoptthe emissions standards and limitations and othermeasures set forth inthe airquality rules (Administrative Rules ofSouth Dakota ("ARSD") Article 74:36), includingthe Regional Haze Programrules inARSD chapter 74:36:21.
II. Applicable Procedural Requirements.
The State's Administrative Procedures Act establishes the proceduresthat mustbe followed by
an agency in adopting rules. SDCL 1-26-4 et seq. The BME followed these procedures in adoptingARSD Chapter 74:36:21, Regional Haze Program. These rules were adoptedbythe BME on September 15,2010, and became effective onDecember7,2010.


### III. Legal Authorityto Enforce.
DENRhas the authorityto enforce the applicable laws, regulations, and air quality standards.
All ofthe statutory authorities for rule-makingpower set forth above containprovisions relating to enforcement. SDCL 34A-1-6 and -15 explicitly state thatviolation ofthe rules promulgated underthose statutes is subjectto SDCL 34A-I-39. This statute states as follows: Anyperson subjectto this sectionis liable for a civilpenalty notto exceedten thousand dollars per day ofviolation orfor damagesto the environment ofthe state, orboth.
SDCL 34A-1-21 also contains this language. Additionally, it states:
A violation ofa condition ofa permit issuedpursuantto this section is subjectto 

### § 34A-1-39. Anyperson who, without a permit, commits an action for which a permitis required is guilty ofa Class 1misdemeanor. Any violation ofa permit condition is a Class 2 misdemeanor and is subjectto § 34A-1-39.
SDCL 34A-1-22 gives the DENR specific authority to "enjointhe construction, modification, or operation ofany stationary source ofairpollution at any location where the emissions from such
sources will preventthe attainment andmaintenance ofcompliance withrules andregulations adopted bythe board." The SecretaryofDENRis also given authority in SDCL 34A-1-45 to issue emergency orders that are immediately effective: Any otherprovisions oflawtothe contrary notwithstanding, ifthe secretary finds that anypersonis causing or contributingto airpollution and that suchpollution creates anemergencybycausing imminent dangerto human health or safety and requires immediate actionto protecthumanhealth or safety, the secretary shall order suchperson orpersonsto reduce ordiscontinue immediatelythe emission of air contaminants.

### James.B. Martin January 18,2011 Page 4

These remedies are not exclusive; an action for a civil penalty does notbar enforcementby injunction. SDCL 34A-1-52. Further, DENRis notrequired to exhaust its administrative remedies before bringing court action. SDCL 34A-10-16. Thus, DENRcan enforce applicable laws, regulations, and standards bycivil penalty and/or injunctive action. DENRcan also enforcethe requirementsto obtain apermitby criminal action. SDCL 34A-1-21.
DENRcan abate pollutantemissions onan emergency basisto prevent substantial endangerment to health using the legal processes set forth in SDCL 34A-1-22 (civil injunctive suit, which includes preliminary injunctive remedies; see SDCL 21-8-1) and SDCL 34A-1-45 (administrative remedy). The administrative remedy authorizes issuance ofanemergency order for immediate reduction or discontinuance ofemissions, which is effective immediately upon service. A hearing process for emergency orders is established, and occurs 

### afterthe effective date ofthe order. SDCL 34A-I-46.
DENRhas authority to preventconstruction, modification, or operation ofa facility, building, structure, orinstallation, or combinationthereof, whichdirectly or indirectlyresults or may result in emissions ofany airpollutant at any location whichwill preventthe attainment or maintenance ofa national standard. This authority appears at SDCL 34A-1-22.
DENRhas authority to obtaininformationnecessaryto determine whether air pollution sources are in compliance with applicablelaws, regulations, and standards, including authority to require recordkeeping and to make inspections and conducttests ofair pollution sources. The authority to adoptrulesregardingthese requirements appears above. In addition, SDCL 34A-1-11 authorizes the BMEto adopt rules that classify air contaminant sources "according to levels and types ofemissions and other characteristics which relate to airpollution, and mayrequire reporting for any such class or classes." SDCL 34A-1-12 authorizes the DENRor the BMEto require the owner oroperator ofan aircontaminant sourceto require, establish, andmaintain records, and sample emissions in accordance with specifiedmethods, locations, and procedures. SDCL 34A-1-40 authorizes the BMEto investigate sources ofair emissions; SDCL 34A-1-41 authorizes DENRto enter and inspect any property which is reasonablybelievedto be a source ofairpollution.
The State's statutes andregulations also require owners or operators ofstationary sources to install, maintain and use emissionmonitoring devices andto make periodic reports to the State on the nature and amounts ofemissions from stationary sources. SDCL 34A-1-12 (reporting); SDCL 34A-1-19 (installation, maintenance anduse ofemission monitoring devices); both discussed above. Reporting is required by state lawto be made availableto the public. SDCL 34A-1-14 states: Any records, reports, or information obtained bythedepartment orboard from owners oroperators ofan air contaminant source or sources shall be availableto the public, exceptthatupon a showing satisfactory to the board bythe owners or operators ofan air contaminant source thatthe records, reports, orinformation

### James B. Martin January 18,2011 Page 5

obtainedbythe department orboard regarding processes orproductiontechnique
are sufficientlyunique to affect adverselythe competitive position ofthe owner or operatorbyrevealingtrade secrets, the department and board shall considerthe record, report, orinformation orparticularportionthereofconfidential inthe administration ofthis chapter

....Notwithstanding the provisions ofthis section, all datarelatingto airpollutionemissions as defined in 

### § 34A-1-2, are public records, and subjectto public disclosure as provided in § 1-40-31.
These statutes provide legal authority to adoptthe Regional Hazerules in ARSD ch. 74:36:21, andmeettherequirements of40 C.F.R. 51.230. I have attached a copy ofthereferenced statutes andregulations hereto. Verytruly yours,

# *OJl~Q~ Roxanne Giedd Deputy Attorney General Chief, Civil Litigation Division Attorney General's Office
RG/dh Encs.

### Chapter 74:36:01 74:36:02 74:36:03 74:36:04 74:36:05 74:36:06 74:36:07 74:36:08 74:36:09 74:36:10 74:36:11 74:36:12 74:36:13 74:36:14 74:36:15 74:36:16 74:36:17 74:36:18 74:36:19 74:36:20 74:36:21

Section 74:36:21:01 74:36:21:02 74:36:21 :03 74:36:21:04 74:36:21:05 74:36:21:06 74:36:21:07
74:36:21:08 74:36:21:09 74:36:21:10 74:36:21: 11 74:36:21:12 

### ARTICLE 74:36
AIRPOLLUTION CONTROLPROGRAM

Definitions. Ambient air quality. Air quality episodes. Operating permits for minor sources. Operating permits for Part70 sources. Regulated airpollutant emissions. New sourceperformance standards. National emission standards for hazardous airpollutants. Prevention ofsignificant deterioration. New source review. Performancetesting. Control ofvisible emissions. Continuous emission monitoring systems. Variances, Repealed. Openburning, Transferred orRepealed. Acidrainprogram. Rapid City street sanding anddeicing. Regulations for state facilities inthe Rapid City area. Mercury budgettrading program, Repealed. Constructionpermits for new sources ormodifications. Regional haze program.



### CHAPTER74:36:21
REGIONALHAZEPROGRAM

Applicability. Definitions. Existing stationary facility defmed. Visibility impact analysis. BART determination. BART determination for a BART-eligible coal-firedpowerplant. Installation of controls based on visibility impact analysis or BART determination. Operation andmaintenance ofcontrols. Monitoring, recordkeeping, and reporting. Permitto construct. Permitrequired for BART determination. Federal landmanagernotification and review.

### 74:36:21:01. Applicability. 

### The provisions ofthis chapterapply to the owneror operator of a new major source, modification to a major source, and a BART-eligible source. The provisions of this chapter do not apply to a major source or major modification to an existing source applicable to chapters 74:36:09 and 74:36:10.
Source: 

### 37 SDR 111, effective December 7, 2010. General Authority: 

### SDCL 34A-1-6. Law Implemented: 

### SDCL 34A-1-6.
74:36:21:02. Definitions. 

### Unless otherwise specified, the terms used inthis chaptermean: (1) "Adverse impact on visibility," visibility impairment that interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the mandatory Class I federal area. Adverse impact onvisibility shall be based ona case-by-casebasis taking into account the geographic extent, intensity, duration, frequency, and time of visibility impairment, and how these factors correlate with times ofvisitor use of a mandatory Class I federal area and the frequency and timing ofnatural conditions thatreduce visibility; (2) "BART," bestavailable retrofittechnology; (3) "Best available retrofit technology" an emission limitation based on the degree of reduction achievable through the application ofthe best system ofcontinuous emission reduction for eachpollutant that is emittedbyan existing stationary facility. The emission limitation mustbe established, on a case-by-case basis, taking into consideration the technology available, the costs ofcompliance, the energy and nonair quality environmental impacts ofcompliance, any pollution control equipment in use or in existence at the source, the remaining useful life ofthe source, and the degree ofimprovementin visibilitythatmay reasonablebe anticipated to result from the use of suchtechnology; (4) "BART-eligible source," an existing stationary facility; (5) "Coal-fired power plant," any person, corporation, limited liability company, association, company, partnership, political subdivision, municipality, rural electric cooperative, consumers power district, or any group or combination acting as a unit, owning or holding under lease, or otherwise real property used, or intended for use, for the conversion ofcoal into electric power; (6) "Contribute to adverse impact on visibility," a change in visibility impairment in a mandatory Class I federal area of five-tenths deciviews or more, based on a 24-hour average, above the average natural visibility baseline. A source exceeds the threshold ifthe 98th 

### percentile (eighth highest value) of the modeling results, based on one year of the three years of meteorological data modeled, equals orexceeds five-tenths deciviews; (7) "Major source," as defmed in §74:36:01:08(2) and (3); (8) "Mandatory Class I federal area," any area identified in 40 C.F.R. § 81, Subpart D (July 1,2009); and**~-~---------------------------------------------------**



### (9) "Visibility impainnent," any human perceptible change in visibility such as light extinction, visual range, contrast, coloration, from that which would have existed under natural conditions.
Source: 37 SDR 111, effective December7,2010. General Authority: SDCL 34A-I-6. LawImplemented: SDCL 34A-I-6.
74:36:21:03. Existing stationary facility defined. An existing stationary facility is any of the following stationary sources ofairpollutants, including any reconstructed source that was not in operationbefore August 7, 1962, and was in existence on August 7, 1977, andhas the potential to emit 250 tons per year or more ofany air pollutant. In determining potential to emit, fugitive emissions, to the extent quantifiable, mustbecountedfor: (1) Fossil-fuel fired steam electric plants ofmore than 250 million British thennal units per hour heat input; (2) Coal cleaning plants (thennal dryers); (3) Kraftpulp mills; (4) Portland cementplants; (5) Primary zinc smelters; (6) Iron and steel millplants; (7) Primary aluminum ore reductionplants; (8) Primary copper smelters; (9) Municipal incinerators capable ofcharging more than 250 tons ofrefuse perday; (10) Hydrofluoric, sulfuric, andnitric acidplants; (11) Petroleumrefmeries; (12) Limeplants; (13) Phosphaterockprocessing plants; (14) Coke ovenbatteries; (15) Sulfurrecoveryplants; (16) Carbonblackplants (furnace process); (17) Primary lead smelters; (18) Fuel conversionplants; (19) Sinteringplants; (20) Secondarymetalproductionfacilities; (21) Chemicalprocessplants; (22) Fossil-fuelboilers ofmore than 250 million Britishthennalunits perhourheat input; (23) Petroleum storage and transfer facilities with a capacity exceeding 300,000 barrels; (24) Taconite ore processing facilities; (25) Glass fiberprocessing plants; and (26) Charcoalproduction facilities.
Source: 37 SDR 111, effective December7,2010. GeneralAuthority: SDCL 34A-I-6. LawImplemented: SDCL 34A-I-6.
74:36:21:04. Visibility impact analysis. The owner or operator ofa new major source or modification to a major source shall demonstrate to the department that the potential to emit from the new major source or modification to a major source will not contribute to adverse impact on

### visibility in any mandatory Class I federal area. The demonstration shall be based on visibility models approved in 40 C.F.R. § 51, SubpartW (July 1, 2009).
Source: 37 SDR 111, effective December 7, 2010. General Authority: SDCL 34A-I-6. LawImplemented: SDCL 34A-I-6.
74:36:21:05. BART determination. The owner or operator ofa BART-eligible source that emits any air pollutant which may reasonably be anticipated to contribute to adverse impact on visibility in any mandatory Class I federal area shall submit a BART determination. The BART determination shall follow the procedures outlined in 40 C.F.R. § 51, Subpart Y (July 1,2009) and must be based on an analysis of the best system of continuous emission control technology available and associated emission reductions achievable for each BART-eligible source. In this analysis, the BART determinationmust take into consideration the technology available, the costs ofcompliance, the energy and nonair quality environmental impacts ofcompliance, any pollution control equipment in use at the source, the remaining useful life ofthe source, and the degree of improvement in visibility that may reasonably be anticipated to result from the use of such technology. The BART determination shall be submitted within nine months after being notified by the department that the existing stationary source is reasonably anticipated to contribute to adverse impact onvisibility in any mandatory Class I federal area.
Source: 37 SDR 111, effective December 7, 2010. General Authority: SDCL 34A-I-6. Law Implemented: SDCL 34A-1-6.
74:36:21:06. BART determination for a BART-eligible coal-fired power plant. The owner or operator ofa BART-eligible coal-firedpowerplant may not cause orpermit emissions of the following regulated airpollutant in excess ofthe following amounts: (1) 

### PMIO emissions in excess of 67.3 pounds per hour, which includes periods of startup and shutdown; (2) PMlO emissions in excess of0.012 pounds per million Btus, which includes periods of startup and shutdown; (3) Sulfur dioxide emissions in excess of505 pounds per hour, which includes periods of startup and shutdown; (4) Sulfur dioxide emissions in excess of 0.09 pounds per million Btus, which does not includeperiods ofstartup and shutdown; (5) Nitrogen oxide emissions in excess of561 pounds per hour, which includes periods of startup and shutdown; and (6) Nitrogen oxide emissions in excess of 0.10 pounds per million Btus, which does not includeperiods ofstartup and shutdown. Compliance with the PM 10 emission limits shall be based on an annual stack performance test using the average ofthree I-hour test runs. Compliance with the sulfur dioxide and nitrogen

### oxide emission limits shall be based on using continuous emission monitoring systems and a 30- day rolling average.
Source: 37 SDR 111, effectiveDecember7,2010. GeneralAuthority: SDCL 34A-1-6. LawImplemented: SDCL 34A-1-6.
74:36:21:07. Installation of controls based on visibility impact analysis or BART determination. The owner oroperator ofa new major source, modification to a major source, or a BART-eligible source that emits any air pollutant which may reasonably be anticipated to contribute to adverse impact on visibility in any mandatory Class I federal area shall install, operate, and maintain the controls established in a visibility impact analysis or BART detennination. The owner or operator of a new major source or modification to a major source must install and operate the controls established in a visibility impact analysis at initial startup. The owner or operator ofa BART-eligible source required to install BART must install, operate, and demonstrate compliance with Bart as expeditiously as practicable, butno later than five years from EPA's approval ofthe state implementationplan for regional haze.
Source: 37 SDR 111, effective December 7, 2010. GeneralAuthority: SDCL 34A-1-6. LawImplemented: SDCL 34A-1-6.
74:36:21:08. Operation and maintenance of controls. The owner or operator required to install and operate controls established in a visibility impact analysis orBART determination shall establish written procedures to ensure the control equipment is properly operated and maintained. The writtenprocedures shall include, at a minimum, the following: (1) A maintenance schedule for each control device that is consistent with the manufacturer's instructions and recommendations for routine and long-tennmaintenance; (2) Procedures for theproper operation and maintenance ofeach control device; and (3) Parameters to be monitored to determine each control device is being operatedproperly.
Source: 37 SDR 111, effective December7,2010. GeneralAuthority: SDCL 34A-1-6. LawImplemented: SDCL 34A-1-6.
74:36:21:09. Monitoring, recordkeeping, and reporting. The owner or operator required to install and operate controls established in a visibility impact analysis or BART determination shall conduct periodic monitoring, recordkeeping, and reporting. All sulfur dioxide and nitrogen oxides emissions.from the BART-eligible source shall be routed to the main stack ofa BARTeligible source. Monitoring of sulfur dioxide and nitrogen oxide emissions from the main stack shall be conducted using a continuous emission monitoring system which complies with the continuous emission monitoring requirements in chapter 74:36:13. Monitoring requirements for other air pollutants from a BART-eligible source or from a major source or modification of a major source shall be in accordance with § 74:36:05:16.01(9). Recordkeeping and reporting shall complywiththe requirements in §74:36:05:16.01(9).
Source: 37 SDR 111, effective December 7, 2010. GeneralAuthority: SDCL 34A-1-6.

# · .

Law Implemented: SDCL 34A-I-6.
74:36:21:10. Permit to construct. The owner or operator subject to this chapter may be issued a permit to construct in accordance with chapter 74:36:20 ifthe department determines that the new major source ormodification to a major source does not contribute to adverse impact on visibility at amandatory Class I federal area.
Source: 37 SDR III, effective December 7, 2010. General Authority: SDCL 34A-I-6. Law Implemented: SDCL 34A-I-6.
74:36:21:11. Permit required for BART determination. The owner or operator of a BART-eligible source shall submit an application in accordance with chapter 74:36:20 to include the controls, emission limits, monitoring, recordkeeping, and reporting requirements identified in the BART determination and approvedbythe department.
Source: 37 SDR Ill, effective December 7, 2010. GeneralAuthority: SDCL 34A-I-6. LawImplemented: SDCL 34A-I-6.
74:36:21:12. Federal land manager notification and review. The department shall provide written notice to the federal land manager of a BART determination or any permit application for a new major source or modification to a major source ifthe emissions from which may contribute to adverse impact on visibility at a mandatory Class I federal area, except for an application submitted in accordance with chapter 74:36:09 or 74:36:10. A notification ofa BART determination shall include a copy ofthe BART determination and must be submitted within 30 days ofreceipt of a complete BART determination. The department shall consider an analysis performed by the federal land manager submitted within 60 days ofthe federal landmanagerbeing notified ofa BART determination orby the end ofthe public participation process, whichever is later. A permit application for anewmajor source ormodificationto amajor source shall inchide a copy ofthe permit application and visibility impact analysis. The department shall consider an analysis performed by the federal land manager submitted within 30 days of the federal land manager being notified of a visibility impact analysis or by the end of the public participation process, whichever is later. The department shall follow the procedures outlined in chapter 74:36:09 or 74:36:10 for an application submitted in accordance with chapter 74:36:09 or 74:36:10.
Source: 37 SDR III, effective December 7, 2010. GeneralAuthority: SDCL 34A-I-6. LawImplemented: SDCL 34A-I-6.f Water Board. DEPARTMENT OF NATURAL RESOURCES. § 

### 1-40-2

Section 1-40-30. 1-40-31.

1-40-32. 1-40-33. 1-40-34. 1-40-35. 1-40-36. 1-40-37. 1-40-38. Establishment ofthe environment and natural resources fee fund-Source offund_Administration-Expenditures-Unexpendedfunds. Full public disclosure of nonconfidential public records-ReproductionFee-Waiver-Response time to written requests-Denial of disclosureAppeals-Promulgation of rules-Attorney's fees and costs for denial of access to hazardous waste public records. Transfer offunds to environment and naturalresources fee fund from water

and environmentfund. Voluntary environmental audits-Assumption against civil orcriminal penalties. Application ofenvironmental auditprovisions-Discoveryofviolations. Environmental audit subject to discovery-Summary ofdisclosed violation. Use ofenvironmental audit as defense. Removal ofregulated entity from environmental auditprovisions. Promulgation ofrules governing inspection of certain concentrated animal

feeding operations. Commission Note SL 1991, ch 17, § 17 (Executive Order 91-4), renamed the "Department ofWater and Natural Resources" as the "Department of Environment and Natural Resources." The code commission has implementedthis change inthis chapter. Administrative Code References 'Environment and natural resources department, concentrated animal feeding operations, inspections, see S.D. Admin. R. 74:57:01. United States Code Annotated ,ElazardoU! substances, see 15 U.S.C.A. § 1261 et seq.



### 1-40-1. Department renamed

The former Department of Natural Resource Development, also formerly 

### as the Department ofWater and Natural Resources, is hereby continued DepartmentofEnvironment and NaturalResources.

SL 1973, ch 2, § 114; SL 1979, ch 354, § 18; SL 1991, ch 17 (Ex. Ord. 91-4),

Cross References in department organizationby secretary, see § 1-32-4. Library References**{""'.~stl,""** Key Number Search: 360k45. States §§ 79, 82, 136. 

### Secretaryasheadofdepartment head of the Department of Environment and Natural Resources is the**:Crt~talrv** ofenvironment and naturalresources.

SL 1973, ch2,§ 115; SLI991,chI7(Ex.Ord.91-4),§ 17. 

### 599DEPARTMENT OF NATURAL RESOURCES. § 1-40-25 Note 1 

### 1-40-24. Performance of functions of Department of Health, secretary of health, and director of Division of Environmental Health relating to air quality and solid waste, radiationmonitoring and mineral exploration, and control of hazardous materials and wastes-Transfer of personnel and budgetofDivision ofEnvironmental Health The functions of the Department of Health, the secretary of health, and the director of the Division of Environmental Health pursuant to chapters 34A-l and 34A-6, their functions relating to radiation monitoring and control for mineral exploration, mining, milling, and processing pursuant to chapter 34-21. and their functions dealing with the generation, transportation, treatment, storage, and disposal of hazardous materials and wastes are transferred to 

### the department and secretary of environment and natural resources. The personnel and budget of the Division of Environmental Health are transferred to 

### the Department ofEnvironment and Natural Resources. Source: SL 1981, ch 374, § 25; SL 1991, ch 17 (Ex. Ord. 91--4), § 17. 

### 1-40-25. Board ofMinerals andEnvironment-Composition-Appointment and terms ofmembers The Board of Minerals and Environment shall consist of nine members appointed by the Governor, not all of whom shall be from the same political party. The terms of the members of the board shall be for four years. Each present member of the former Board of Environmental Protection, however, shall continue his existing term on the board without this order affecting the length or conditions of the present term. Appointments to fill vacancies created by the expiration ofthe terms ofpresent members of the former Board ofEnvironmental Protection shall be for four years. The terms of members of the board first appointed after July 

### 1. 1981, shall be such that no more than three and no less than two members of the board, including those members continuing from the former Board of Environmental Protection, shall have terms expiring in anyone calendar year. The length of such initial terms shall be designated by the Governor. Any member appointed to fill a vacancy ariSing from other than the natural expiration ofa term shall serve for only the unexpired portion ofthe term. Source: SL 1981, ch 374, §§ 19 to 22; SDCL Supp, § 1-43-7.1. Library References States 0=>45 to 48, 5I. Westlaw Key Number Searcbes: 360k45 to

360k48; 360k5 I. c.J.S. States §§ 61, 79 to 80, 82 to 84, 87, 91 to 92, 102, 136.

Notes of Decisions Ingeneral 1 and Environment of subject matterjurisdiction, particularly where contesting tract owners 1. Ingeneral made general appearance at all proceedings beLack of proper notice to tract owners who fore Board, not once objecting tolack ofperson**Con~sted** application for unitization of portion aljurisdiction, and participated fully in presenof OIl field did not deprive Board of Minerals tation of their own testimony, as well as cross607§ 

### 1-40-25 Note 1 examining witnesses for applicant. SDCL 1-32-2, 1-40-25, 45-9-54, 45-9-57. Application ofKoch Exploration Co., 1986,387N.W.2d 530. Administrative Law And Procedure e=o 454; Mines And Minerals <s= 92.79

Unitization orderissued by Board ofMinerals and Environment after defective notice was void only as to those persons over whom Board failed to obtain personaljurisdiction and, thus, was valid as to tract owners who made general appearance in proceedings before Board. SDCL 1-32-2, 1-40-25, 45-9-54, 45-9-57. Application of Koch Exploration Co., 1986, 387 N.W.2d 530. Administrative Law And Procedure e=o 455; Mines And Minerals e=o 92.79

Administrative rule that application for order for unit operation be submitted to Board of Minerals and Environment at least 60 days before date requested for hearing was advisory only, and thus, Board's failure to wait 60 days STATE AFFAIRS AND GOVERNMIWr

from time of filing to hold hearing on tion for unitization did not deprive

- --,e**~-.~~.** subject matter jurisdiction. SDCL 1-40-25, 45-9-54, 45-9-57. Koch Exploration Co., 1986, 387 .2d Administrative Law And Procedure <s= 468. Mines And Minerals <s= 92.79 ...'

Board ofMinerals and Environment had ject matterjurisdiction over tract owners lenging application for unitization ofportior" .' oil field, pursuant to' statute providing thai Board had jurisdiction and authority over aU persons and property necessary to effectively enforce provisions ofchapterregulating oil

## and gas conservation and statute' authorizing Board to hold hearing on filing of

### P~?:d~~.t~~~c~~,tf

# II any matter within Board's jt 1-32-2, 1-40-25, 45-9-54, 45-9-57. tion ofKoch Exploration Co., 1986,**3871~.'IV.L~".** 530. Mines And Minerals e=o 92.79 

### 1-40-25.1. Board ofMinerals and Environment composed in coluo.rmam:el withCleanAirAct In addition to the provisions of § 

### 1-40-25, 

### the Board of Minerals Environment shall be composed in conformance with the requirement of Clean Air Act § 

### 128 (42 

### USC § 

### 7428) 

### as amended to January 1, 1995, 

### for permits andenforcement orders initiatedunderchapter34A-1. Source: SL 1995, 

### ch 318 (Ex. Ord. 95-2), § 15. 

### 1-40-26. Officers ofBoard ofMinerals and**En.viroDiment--Quolruln--Mc~et~1A** 

### ings (1) The a}: 

### permit directo applic< (a) Ha pel (b) 

### Ha tur (c) 

### Ha: stat mat (d) Ha:; 

### stat (e) Has denl gooe , gati( , (2) 

### The app applican reversed sion may applicatic represent cies that applications
The Board of Minerals and Environment shall annually elect from its m(:ll\.,.a 

### reason oJ bers suchofficers as itdeems advisable. Amajority ofthe board memberssh,ailJ!1d(mc:e to the be required to constitute a quorum. The board shall hold meetings at ofthe su of the chairman or a majority ofthe members, but there shall be held at re, one meeting every three months. has Source: SL 1973, ch2, § 100; SL 1974, ch 3, § 37; SDCL Supp, §§ 1-38-5,1-43-8. Cross References Meetings ofpublic agencies, see § 1-25-1 etseq. Library References Statese=o67. Westlaw Key NumberSearch: 360k67. C.J.S. States §§ 121, 136 to 138, 140. 

### 1-40-27. Rejection of applications for certain environmental mining, oil, andgaspermits The secretary may reject an application for anypermit filed pursuantto I.A:pPilic,:ttil)ns rej( that applicat chapter 1-2l

SL 1991, 

### ch

34A or 45, including any application by any concentrated swine feedInIl operation for authorization to operate under a general permit, upon making il\jenerlll specific finding that: 

### 608§ 34A-l-l ENVIRONMENTAL PROTECTION


### 34A-l-l. Policy ofstate-Purposeofchapter 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 ofair quality. To these ends it 

### is the purpose ofthis 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 acrossjurisdictionallines indealing with problems ofairpollutionnot confined within singlejurisdictions, and to provide a framework within which all values maybebalancedin thepublic interest. Source: SL 1970, ch 203, § 1; SDCL Supp, § 34-16A-1. Library References Environmental Lawe=>241, 245. Westlaw Key Number Searches: 149Ek241;

I49Ek245. Research References ALRLibrary

Injunction. right to maintain action to enjoin

public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665. Knowledge, scienter, or intent, necessity of

showing, in prosecution for violation of air pollution or smoke control statute or ordinance, 46 A.L.R.3d 758. Ringlemann smoke chart, evidence as to Ringlemann Chart observations, 51 A.L.R.3d 1026. Smoke and other air pollution, validity of

regulation of, 78 A.L.R.2d 1305. Sufficiency of evidence of violation in administrative proceeding terminating in abatementorder, 48 A.L.R.3d 795. Validity of legislation permitting administrative agency to fix permissible standards of pollutantemission, 48 A.L.R.3d 326. When statute oflimitationsbegins to run as to

cause of action for nuisance based on air pollution, 19 A.L.R.4th 456. Encyclopedias

61 Am. Jur.2d, Pollution Control, §§ 1-10,

19-52, liS et seq.
Treatises and PracticeAids State Environmental Law § 5:2.

United States Supreme Court Environmental protection, In general,

Environmental law, forest management,

land and resource management plans, pre-implementation judicial review, ripeness for adjudication, see Ohio Forestry Assn Inc. v. Sierra Club, U.S.Ohio.1998, 118 S.Ct. 1665, 523 U.S. 726. Environmental protection, NPDES permits, interstate waters, water quality 

### 4 standards of affected states, see Arkansas v. Oklahoma, U.S.1992, 112 S.C!. 1046.503 U.S. 91, 117 L.Ed.2d 239, on remand 962 F.2d996. Jurisdiction,

Indian reservations, Dawes Act, state or

federal jurisdiction over unallotted lands, environmental regulations, landfill site, see South Dakota v. Yankton Sioux Tribe, U.S.S.D.1998, 118 S.C!. 789,522 U.S. 329.1

I 

### s

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or tedndton .Ct. AIR POLLUTION CONTROL §34A-I-4

Notes of Decisions In general 1
1. Ingeneral and 45 be paid to the benefit of the public schools; those civil penalties which are not criminal sanctions can be paid into a newly Const., Art. VIII, § 3 does not mandate that civil penalties collected pursuant to Titles 34A 

### 34A-1-2. Definition ofterms

Terms used inthis chapter mean: created cleanup fund. Op.Atty.Gen. Opinion No. 88-04, 1988 WL 48325 I.

(1) "Air contaminant," dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, radioactive materials as defined in chapter 34-21, or any combinationthereof; (2) "Airpollution," the presence inthe outdoor atmosphere ofone ormore air contaminants in such quantities and duration as is or tend to be injurious to human health orwelfare, animals orplantlife, orproperty, orwouldinterfere withthe enjoyment oflife orproperty; (3) "Board," the Board of Min eta Is andEnvironment; (4) "Department," the DepartmentofEnvironmentand Natural Resources; (5) "Emission," a release into the outdoor atmosphere ofaircontaminants; (6) "Person," any individual, partnership, limited liability company, firm, association, municipality, public or private corporation, subdivision or agency ofthe state, trust, estate, or any otherlegal entity; (7) "Secretary,"the secretary ofenvironmentand 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. Commission Note SL 1991, ch 17, § 17 (Executive Reorganization Order 91-4), renamedthe "Department ofWater and Natural Resources" as the "Department of Environment and Natural Resources." The Code Commissionhas implementedthis change inthis section. 

### 34A-1-3. Repealedby 

### SL 1993, ch 256, § 1 Historical and Statutory Notes The repealed section related to acceptance and administration ofgrants and donations, depositintreasury. 

### 34A-1-4. Technical and operational services securedby

### secretary

The secretary shall have power to secure necessary scientific, technical, administrative, and operational services, including laboratory facilities by contract orotherwise. Source: SL 1970, ch 203, § 5 (5); SDCL Supp, § 34-16A-8; SL 1977, ch 280, § 2.
Cross References
Office oflaboratory services, see § 1-49-1 et seq.5§ 34A-1-4 ENVIRONMENTAL PROTECTION

Library References
Environmental Law <1:=>242. Westlaw Key Number Search: 149Ek242. 

### 34A-l-S. Administration of chapter-Board functions-Enforcement as to radioactive substances The administration of this chapter shall be the responsibility ofthe secretary of water and natural resources except that the Board of Minerals and Environment shall perform any quasi-judicia!. quasi-legislative, advisory, and special budgetary functions set out in this chapter. The board, with the concurrence of the secretary of water and natural resources may enforce those regulations promulgated pursuantto chapter 34-21 which pertain to the release ofradioactive substances into the atmosphere. Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-II; SL 1971, ch 204, § I; SL 1977. ch 280. § 3; SL 1978. ch 250. § 7. Library References
Environmental Law <1:=>242.256.472. Westlaw Key Number Searches: 149Ek242;

149Ek256; 149Ek472. 

### 34A-1-6. Promulgation ofrules-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 offuel 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 ofvariances; 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-I-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. § I; SL 1992. ch 158. § 6A. 6AIR POLLUTION CONTROL

Cross References Agency rulemakingprocedure, see § 1-26-4 et seq. Limitation on stringency ofstate rules, see § 1-40-4.1. Research References Treatises and PracticeAids State Environmental Law § 8:5. United States Supreme Court § 34A-1-7

Airqualitystandards, Approval of state plans for achieving federal ambient air quality standards, see Train v. Natural Resources Defense Council. Inc., U.S.Ga.1975, 95 S.C!. 1470, 421 U.S. 60, 43 L.Ed.2d 731. Revisions to national ambient air quality standards, delegation of legislative power, final agency action, see Whitman v. American Trucking Associations, Inc., U.S.Dist.CoI.2001, 121 S.Ct. 903.
Notes ofDecisions Ingeneral 1

1. Ingeneral

Rules promulgated by board pursuant to this section and § 34A-I-18 are enforceable against state owned agencies. Op.Atty.Gen. Opinion No. 78-57, 1978 WL 33926.



### 34A-I-6.1. Rules relating to incinerators for municipal solid waste-Requirements-Inapplicable as to medical waste incineration-Violation The Board ofMinerals and Environment shall promulgate rules governed by subdivision § 34A-1-6(10) by October 1, 1990. No new permit related to incinerators for municipal solid waste may be issued under this chapter until the rules required in this section are in effect. The rules required in this section need not address medical waste incineration, and the prohibition of permitting provided in this section does not apply to medical waste incineration. A violation ofthe rules promulgated pursuant to this section is subject to § 34A-1-39. Source: SL 1990, ch 283, § lA; SL 1992, ch 158, § 6B.
Cross References Limitation on stringencyofstate rules, see § 1-40-4.1. Library References Environmental Law *,,272. Westlaw Key Number Search: 149Ek272. 

### 34A-I-7. Employmentofpersonnel by 

### department

In accordance with chapter 3-6A, the department may employ, compensate, and prescribe the powers and duties of such persons as may be necessary to carry outthe provisions ofthis chapter. Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-14; revised pursuant to SL 1967, ch 265. 7§34A-1-8 ENVIRONMENTAL PROTECTION


### 34A-1-8. Delegation offunctions bysecretary

The secretary may delegate to officers and employees ofthe department such functions, duties, and authority as are vested in the department by this chapter. Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-15. Library References Environmental Law *'242, 256, 289. Westlaw Key Number Searches: 149Ek242;

149Ek256; 149Ek289. 

### 34A-1-9. Studies, investigations and educational activities ofdepartment

The department shall have powerto: (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 and the several parts thereof. (3) Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality ofthe outdoor atmosphere of this state and the several parts thereof. and make recommendations to appropriate public and privatebodies with respect thereto. (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. Library References

Environmental Law *'242. 256, 289. Westlaw Key Number Searches: 149Ek242;

149Ek256; 149Ek289. 

### 34A-I-IO. Cooperationby department with other agencies

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 respectivejurisdictions and on a cooperative basis, and to provide technical and consultative assistance therefor. (3) Encourage voluntary cooperation by persons, or affected groups to achieve the purposes ofthis chapter. (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 thereof, concerning the efficacy of such device or system, or the air pollution problem that may be related to the source, device or system. Nothing in any such consultation may be construed to relieve 8 Al

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anyperson from compliance with this chapter, rules and regulations in force pursuantthereto, or any otherprovisions oflaw. Source: SL 1970, ch 203, § 5(6) to (8), (14), (15); SDCL Supp, § 34-16A-17; SL 1977, ch 280, § 6; SL 1986, ch295, § 6.Library References

Environmental Law\1;;>242, 256, 289. Wesclaw Key Number Searches: 149Ek242;

149Ek256; 149Ek289. 

### 34A-l-ll. Classification of air contaminant sources-Reporting requirements The Board of J\i1inerals 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 maybe for applicationto the state as a whole or to any designated area ofthe state, and shall be made with specialreference 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.
Cross References Agencyrulemakingprocedure, see § 1-26-4 etseq. Library References Environmental Law\1;;>266. Wesclaw Key Number Search: 149Ek266.**34A~1-12.** Records and reports required on air contaminant sourcesMonitoring and sampling methods-Otherinformation-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 andregulations inforce pursuant thereto as the department orboard 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 ofthis section is subjectto § 

### 34A-1-39. Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-19; SL 1973, ch 222, § 4; SL 1992, ch 158, § 7 . Library References

Environmental Law\1;;>266, 275. Westlaw Key Number Searches: 149Ek266;

149Ek275. 

### 9§ 34A-1-13 ENVIRONMENTAL PROTECTION


### 34A-1-13. Access to records relating toairpollution emissions

The board shall have power to require access to records relatingto 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. 

### 34A-1-14. Records and information available to public-Exception to protect trade secrets-Authorizeduse-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 ifnecessary for the prosecution ofviolations ofthe 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 ofthe outdoor atmosphere ifthe 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 ofthis section, all data relating to air pollution emissions as defined in § 34A-I-2, are public records, and subject to public disclosure as provided in § 1-40-31.

Aviolation ofthis 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.
Cross References Crimes, penalties for classified misdemeanors, see § 22-6-2. 

### 34A-1-15. Establishment ofambient airquality 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 ofthe state. Any person who violates these standards is subject to § 34A-I-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. Library References Environmental Law <8=>256. Westlaw Key NumberSearch: 149Ek256. 10AIR POLLUTION CONTROL §34A-1-18

Research References Treatises andPracticeAids

Surface Mining And Reclamation Operations

UnderA Federal Program ForThe State Of South Dakota, 47 Federal Register 34760. United States Supreme Court Air qualitystandards, Approval of state plans for achieving federal ambient air quality standards, see Train v. Natural Resources Defense Council, Inc., U.S.Ga.1975, 95 S.Ct. 1470, 421 U.S. 60, 43 L.Ed.2d 731. Revisions to national ambient air quality standards, delegation of legislative power, final agency action, see Whitman v. American Trucking Associations, Inc., U.S.Dist.Col.2001, 121 S.Ct. 903. 

### 34A-1-16. Specification offuels permittedin state-Violation

The Board of Minerals and Environment may promulgate rules pursuant to chapter 1-26 that specify the kind or composition offuels 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 subjectto § 

### 34A-1-39. Source: 8DCL, § 34-16A-16 as added by 8L 1973, ch 222, § 2; SDCL 8upp, § 34-16A-22.1; SL 1980, ch 238, § 13; 8L 1992, ch 158, § 9; 8L 1993, ch 256, § 4. Library References Environmental Law0=>266, 275. Westlaw Key Number Searches: 149Ek266;

149Ek275. 

### 34A-l-l7. Contaminationwithinplantexcludedfromjurisdiction

Nothing in this chapter shall be construed to grant to the department or board anyjurisdiction or authority with respect to air contamination existing solely within commercial andindustrial plants, works, or shops. Source: SL 1970, ch 203, § 17; SDCL Supp, § 34-16A-23. Library References EnvironmentalLaw0=>285. Westlaw Key Number Search: 149Ek285. 

### 34A-1-18. Emission control and open burning requirements-Local control-Nonconformanceasviolation 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 ofthe purposes ofthis 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 11§ 34A-1-18 ENVIRONMENTAL PROTECTION

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, § I; SL 1980, ch 238, § 14; SL 1992, ch 158, § 10; SL 1993, ch 256, § 5. Cross References Agency rulemaking procedure, see § 1-26-4 et seq. Limitation on stringency ofstate rules, see § 1-40-4.1. Library References Environmental Law «;;>272. Westlaw Key Number Search: 149Ek272. Notes of Decisions In general 1

I. In general

Rules promulgated by board pursuant to this section and § 34A-I-6 are enforceable against state owned agencies. Op.Atty.Gen. Opinion No. 78-57, 1978 WL 33926.



### 34A-1-19. Emission control methods and devices required-Permission to use alternative methods-Violation Whenever 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 thereby, it may require the use of such methods and the installation of such features, machines, or devices; provided, however, that 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-I-39. Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-26; SL 1973, ch 222, § 6; SL 1992, ch 158, § II. Library References

Environmental Law e=>266, 275, 295. Westlaw Key Number Searches: 149Ek266;

149Ek275; 149Ek295. 

### 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 mainte12

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nance 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 8upp, § 34-16A-26.1; SL 1980, ch 238, § 15; SL 1992, ch 158, § 12; SL 1993, ch 256, § 6. Library References Environmental Law <3=>273. Westlaw Key NumberSearch: 149Ek273. 

### 34A-1-21. Permits required for air pollutant equipment and control devices-Applications-Rules-Recommendations by secretary--UearingsViolation-Actions taken without a permit or in violation ofpermit 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**t11~crfor** has been obtained from the boaql Qr the secretary. Any person in violation ofthese rules is subjectto § 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 oontestedcase hearingbytheboardon its own·motion or uponprotestby the, appHcant or an adversely.affected person. 

### If the recommendation of the**s~cretary** is not contested, that recommendation shall become a final determin,ation on the application. 

### If an uncontested recommendation is for approval or, conditional approval of the application, the permit shall be issued by the secretaryconsistentwithhis recommendation.

Aviolation ofa condition ofa permitissued pursuantto this sectionis 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 andis subjectto § 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; 8L 1992, ch 158, § 13; SL 1992, ch 254, §94. Cross References ;.:' CO:'!'tested cases, see § 1-26-16et seq. Cnmes, penalties for classified misdemeanors, see § 22-6-2. Deposition ofwitnesses, see § 1-26-19.2. 13§ 34A-1-21 ENVIRONMENTAL PROTECTION

Limitation on stringency ofstate rules, see § 1-40--4.1. Reports required following the issuance ofuncontested permits, see § 1-40-29. Rules, procedure for adoption, see §§ 1-26-4to 1-26-14. Subpoena and administration ofoaths to witnesses, see § 1-26-19.1. Library References
Environmental Law e=>265. Westlaw Key Number Search: 149Ek265. Research References
Treatises andPracticeAids

Surface Mining And Reclamation Operations

Under AFederal Program ForThe State Of South Dakota, 47 Federal Register 34760. 

### 34A-1-22. Preventionofstationarypollution sources notincompliance

The department may enjoin the construction, modification, or operation of any stationary source of air pollution at any locationwhere the emissions from such sources will prevent the attainment and maintenance of compliance with rules and regulations adoptedbytheboard. Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, § 34-16A-27.1; SL 1992, ch 158, § 14. Cross References
Limitation on stringency of state rules, see § 1-40--4.1. Library References
Environmental Lawe=>268. Westlaw Key Number Search: 149Ek268. 

### 34A-1-23. particularmanufacturer nottobefavored by requirements Nothing in § 34A-I-19 or 34A-I-21 shall be construed to authorize the board to require the use ofmachinery, devices, or equipment from a particular supplier orproducedby a particular manufacturer, ifthe required performance standards maybe metbymachinery, devices, or equipment otherwise available. Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-28. Library References
Environmental Lawe=>266, 275. Westlaw Key Number Searches: 149Ek266;

149Ek275. 

### 34A-1-24. Application for variance from rules

Any person who owns or is in control of any plant, building structure, process, or equipment may apply to the board for a variance from rules governing the quality, nature, duration, or extent ofemissions. The application shall be accompanied by such information and data as the board may require. However, no variance may be granted for any facility subject to Title V of the 14 A

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Cross References Jointexercise ofgovernmental powers, see § 1-24-1 et seq. Subpoenaand administration ofoaths to witnesses, see § 1-26-19.1. Library References Environmental Law e;>249, 256

. Westlaw Key Number Searches: 149Ek249;

149Ek256. §34A-l-40



### 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 ofair contaminant source. Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-43. Library References Environmental Lawe;>249, 256. Westlaw Key Number Searches: 149Ek249;

149Ek256. 

### 34A-1-39. Civil action for violation ofrequirements-Penalty-Liabilityfor damages to environment-Jury trial Anyperson subjectto this section is liable for a civil penalty notto exceed.ten thousand dollars per day ofviolation or for damages to the environment ofthe state, orboth. An action for the recovery of a civil penalty shall, upon demand, be triedto 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. Library References

Environmental Lawe;>296. Westlaw Key Number Search: 149Ek296.
Research References Treatises and PracticeAids Environmental Spill Reporting Handbook § 54:2. 

### 34A-1-40. Investigations onboard's own initiative-Petitionbylocalboard
or electors The board may upon its own initiative cause to be investigated the alleged pollution ofthe air or any other violation of this chapter including the violation ofanyregulations issuedpursuantto this chapter, or such investigation shall be 19§34A-1-40 ENVIRONMENTAL PROTECTION

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-ll as added by SL 1971, ch 204, § 1; SDCL Supp, § 34--16A-44.1; SL 1992, ch 60, § 2.
Commission Note Section 2 of chapter 60 of the 1992 Session Laws changed the term "city" to "first class municipality" and "second class municipality" and changed the term "town" to "third class municipality". Section 2 also substituted "municipality" for "city or town" if the class of the municipality was not specified. The Code Commission has implemented this act in this section. Cross References Deposition ofwitnesses, see § 1-26-19.2. Library References Environmental Law*'289, 295. Westlaw Key Number Searches: 149Ek289;

149Ek295. 

### 34A-1-41. Entryfor inspection to determine compliance-Refusal ofaccess 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 he has reasonable grounds to believe is the source of air pollution at any reasonable time forthe purpose ofinvestigating the airpollution or ofascertaining the state of compliance with this chapter and rules and regulations in force pursuant thereto. No person shall refuse entry or access to any authorized representative of the department who requests entry for the purpose of such investigation, and who presents appropriate credentials; nor shall 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. Cross References Searchwarrants, see Canst. Art. VI, § II and § 23A-35-1 et seq. Library References Searches and Seizures *,79. Westlaw Key Number Search: 349k79. C.J.S. Searches and Seizures §§ 99 to 101, 189. 

### 34A-1-42. Report ofinspection furnished to owner oroperator 

### 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 byboard-Proceduralpowers

In addition to any other powers conferred on it by law the board shall have powerto hold hearings relating to any aspect oformatter inthe administration 20 

### AIR P

of**thi~ chapt~**  Source 1972, c

SUbpoen

Enviro Westla' 

### 34A-l

In ad pOwer t this cha proceed Source: :

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### 34A-lemis Any otl finds thai pollution or safety secretary ately the effective i and any 1 I immediatt Source: Sl

Environme Westlaw K, 

### 34A-1-4C

Upon tht servedpun Following 1 or set aside Source: SL. ch 15, § 4.:TlON
lity or

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### f accesS

artment 'hich hereasonning the in force thorized

of such if person

l.

99 to 101,

rsuant to ich relate

;hall have nistration AIR POLLUTION CONTROL §34A-1-46

of this chapter, and in connection therewith, 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 IS, § 4.
Cross References Subpoenapowers and taking ofdepositions, see §§ 1-26-19.1 and 1-26-19.2. Library References Environmental Law<1:=>293. Westlaw Key Number Search: 149Ek293. 

### 34A-1-44. Issuance andenforcementoforders

In addition to any other powers conferred on it by law the board shall have power to issue such orders as may be necessary to effectuate the purposes of this chapterand enforce the sameby all appropriate administrative andjudicial proceedings. Source: SL 1970, ch 203, § 5 (3); SDCL SUpp, § 34--16A-49. Library References Environmental Law<1:=>295. WestIaw Key NumberSearch; 149Ek295. 

### 34A-1-45. Emergency order for immediate reduction or discontinuanCe of emissions Any other provisions of law to the contrary notwithstanding, ifthe secretary finds that any person is causing or·contributing to air pollution and that such pollution creates an emergency by causing imminent danger to humanhealth or safety and requires immediate action to protect human health or safety, the secretary shall order such person or persons to reduce or discontinue irn.rriediately the emission of air contaminants. Such emergency order shall become effective immediately on service upon person or persons.responsible therefor and any person to whom such an order is directed shall comply therewith immediately. Source: SL 1970, ch 203, § 11; SDCL SUpp, § 34--16A-50. Library References Environmental Law<1:=>295. Westlaw Key NumberSearch: 149Ek295. 

### 34A-1-46. Hearingrequested on emergencyorder-Actionbyboard

Upon the request for a hearing by any person or persons named in an order servedpursuantto § 34A-I-45, the secretary shallproceedunder chapter 1-26. FolloWing the completion of such proceedings, the board shall affirm, modify or setaside the or,der ofthe secretary. , Source: SL 1970, ch 203, § 11; SDCL SUpp, § 34--16A-51; revised pursuantto SL 1972, ch IS, § 4. 21

### nON

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ted ter or on !6. 72,

er 

### Ie a AIR POLLUTION CONTROL §34A-1-52

consent agreement instead of initiating proceedings under § 34A-1-47. Any consent agreement shall be approvedbythe board. Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-55; revised pursuantto SL 1972, ch 15, § 4; SL 1977, ch 280, § 16.
Cross References Contested caseprocedure, see § 1-26-16 et seq. Subpoenapowers and witness fees in administrativeproceedings, see § 1-26-19.1. 

### 34A-1-50. Board orders afterhearing

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 airpollution involved. If, afterproceedingson 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. Library References Environmental Law *"293. Westlaw Key Number Search: 149Ek293. 

### 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 bywhich the violation orviolations shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the emissions ofairpollution. Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-58. Library References Environmental Law *,,293, 295. Westlaw Key Number Searches: 149Ek293;

149Ek295. 

### 34A-1-52. Enforcementremedies notbarredby actions forpenalties

Action pursuant to § 34A-1-39 or the second paragraph of § 34A-1-14 shall not be a bar to enforcement ofthis chapter or rules in force pursuant thereto, and orders made pursuant to this chapter by injunction or other appropriate remedy. Source: SL 1970, ch203, § 15; SDCL Supp, § 34-16A-59; SL 1977, ch 280, § 18. Library References Environmental Lawe;.295, 296. Westlaw Key Number Searches: 149Ek295;

149Ek296. 23

### §34A-IO-ll ENVIRONMENTAL PROTECTION



### and other natural resources or the public trust therein from pollution, impairment, ordestruction. Source: SL 1973, ch 144, § 5 (1); SDCL Supp, § 21-lOA-11. See Mich Comp Laws 1970, § 691.1204 (I). 

### 34A-I0-12. Apportionmentofcosts Costs may be apportionedto the parties 

### ifthe interests ofjustice require. Source: SL 1973, ch 144, § 4 (3); SDCL Supp, § 21-10A-12. See Mich Comp Laws 1970, § 691.1203 (3). 

### 34A-I0-13. Collateral estoppel-Resjudicata

The doctrines of collateral estoppel and resjudicata shall be applied by the courtto preventmultiplicity ofsuits. Source: SL 1973, ch 144, § 6 (3); SDCL Supp, § 21-10A-13. See Mich Comp Laws 1970, § 691.1205 (3). Cross References Resjudicata as affirmative defense, see § 15-6-8(c). 

### 34A-IO-I4. Chapter supplementaryto otherprocedures

This chapter shallbe supplementaryto existing administrative and regulatory procedures. Source: SL 1973, ch 144, § 7; SDCL Supp, § 21-lOA-14. See Mich Comp Laws 1970, § 691.1206. Cross References
Airpollution control, see§ 34A-l-l et seq. Waterpollution control, see § 34A-2-1 etseq. 

### 34A-IO-I5. Citationofchapter

This chapter shall be known and may be cited as the "South Dakota Environmental ProtectionAct of 1973." Source: SL 1973, ch 144, § 1; SDCL Supp, § 21-10A-15. See Mich Comp Laws 1970, § 691.1201. 

### 34A-IO-I6. Enforcementactionby

### department

The department need not exhaust its administrative remedies, 

### if any exist, before commencing any action to enforce theprovisions ofTitle 34A, 45, or 46. Source: SL1991,ch288,§ 17. Library References

Environmental Law €=>665. Westlaw Key NumberSearch: 149Ek665. 238

### CHAPTER 21-8 

### INJUNCTION

Kinds ofinjunctive relief. Section 21-8-1. 21-8-2. 21-8-3. Purposes for whichinjunctionprohibited. Provisional writ abolished-Temporary restraining

injunction substituted. 21-8-4,21-8-5. Repealed. 21-8-6. Restraining order or preliminary injunction to prevent disposal of property duringpendency ofaction. ' 21-8-7. Notice required before restraining orderorpreliminaryinjunctionto smlp€'ndl? corporate business. 21-8-8. Repealed. 21-8-9. Pleading in lieu of affidavit for restraining order or preliminary injun,cti'Jn-_ Service ofpleading and affidavit. 21-8-10,21-8-11. Repealed. 21-8-12. Ordergranting restraining orderorpreliminaryinjunction. 21-8-13. Repealed. 21-8-14. Circumstances permitting grant ofpermanentinjunction. 21-8-15. Permanentinjunctionbyjudgment or decree in civil action-Procedure. 21-8-16. Judicialpowerto restrain or enjoin violations ofobscenitylaws. 21-8-17. Notice and trial before injunction to enforce obscenity laws-Orders deliver and destroy obscene matter. 21-8-18. Sale of obscene matter to adults not to be enjoined-Destruction not ,mrtPtwl unless matterdisseminated to minors.
Cross References Attachment ofproperlypendinglitigation, see § 21-17A-1 et seq. Originalproceedings in Supreme Court, action for injunctions, see § 15-25-1 et seq. Preliminary injunctions and temporary restraining orders, prior notice requirements, §§ 15-6-65(a) and 15-6-65(b). Preliminary injunctions and temporary restraining orders, undertaking required for issuance, § 15-6-65(c). Stayofproceedings, appeal does not stayinjunctionunless ordered, see § 15-6-62(a). United States Code Annotated Injunctions, stay ofstate courtproceedings, see 28 U.S.C.A. § 2283. 

### 21-8-1. Kinds ofinjunctive relief

Relief by injunction is either temporary or permanent. Temporary injun,c' tions may be referred to as interlocutory injunctions, and are either telu]:loraI) restraining orders or preliminary injunctions. Permanent injunctions may referredto as final injunctions. Source: CivC 1877, § 2014; CL 1887, § 4647; RCivC 1903, § 2359; RC 1919, § SDC 1939 & Supp 1960, § 37.4301; SL 1978, ch ISS, § 5. Library References Injunction *'1, 132, 150, 189. Westlaw Key Number Searches: 212k1;

212k132; 212k150; 212k189. 160 C.J.S. Injunctions §§ 2 to 6, 10, 12, 14, 16 17,22, 24, 166, 168, 189, 235 to 236,