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 Protection Agency 

Region VIII 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Re: State of South Dakota's State Implementation Planfor Regional Haze 

Legal Authority and Compliance with Procedural Requirements 

Dear Mr. Martin: 

CHARLES D. McGUIGAN 

CHIEF DEPUTY ATIORNEY GENERAL 

At the request of the State of South Dakota Department of Environment and Natural Resources 

("DENR"), I have reviewed the relevant elements of the South Dakota Regional Haze State 

Implementation Plan prepared and submitted by DENR to the United States Environmental 

Protection Agency ("EPA"). This letter confirms that DENR has legal authority to carry out the 

State Implementation Plan for Regional Haze and adopt the administrative rules described in that 

Plan; confirms that DENR has complied with the procedural requirements applicable to the 

adoption of the administrative rules; and identifies and provides a copy of the sources of 

DENR's authority to implement and enforce applicable statutes and rules as required by 40 

C.F.R.51.230. This letter is provided for inclusion in the DENR's SIP submission concerning 

Regional Haze to EPA to satisfy the requirement of 42 U.S.C. 7410(a)(2)(E). 

1. Legal Authority to Adopt. 

DENR is an agency of the State of South Dakota, created by the South Dakota Legislature. 

SDCL 1-40-1. One. of its functions is the development and implementation of the State's Air 

Pollution Control Program, established by the Legislature in SDCL ch. 34A-1. SDCL 1-40-24. 

The Board of Minerals and Environment ("BME") is a board within DENR. SDCL 1-40-25 and 

-25.1. The Secretary ofDENR is responsible for the administration of the 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 

of the BME. SDCL 34A-l-S. 

The Legislature established the State's Air Pollution Control Program. SDCL 34A-1-1 states: 

It is hereby declared to be the public policy ofthe 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 

essentialinstruments for the securing and maintenance of appropriate levels of air 

quality. To these ends it is the purpose of this chapter to provide for a 

coordinated state-wide program of air pollution prevention, abatement and 

control, for an appropriate distribution of responsibilities among the state and 

local units of government, and to facilitate cooperation across jurisdictional lines 

in dealing with problems of air pollution not confined within single jurisdictions, 

and to provide a framework within which all values may be balanced in the public 

interest. 

SDCL 34A-1-1 (emphasis added.) 

The BME is authorized by the Legislature to adopt administrative rules. SDCL 34A-1-S. (BME 

is to perform any quasi-legislative functions of SDCL ch. 34A-1; the adoption of administrative 

rules is a quasi-legislation function.) The Legislature has set out the specific areas regarding 

which administrative rules may be adopted. SDCL 34A-1-6 authorizes the Board to promulgate 

rules to, inter alia, establish ambient air standards, require records, installation of monitoring 

equipment, emission sampling methodology, procedures for attainment and maintenance of 

ambient air quality standards, and the monitoring of ambient air quality. SDCL 34A-1-11 

authorizes the BME to "classify air contaminant sources according to levels and types of 

emissions and other characteristics which relate to air pollution" and establish reporting 

requirements for any such class or classes. SDCL 34A-l-IS requires the BME to promulgate 

rules establishing "ambient air quality standards for the state as a whole or for any part of the 

state." 

In addition, SDCL 34A~ 1-21 provides specific authority for the BME to prohibit,'by rule, "the 

installation, alteration,. or use of any machine, equipment, device, or other article which it finds 

may cause or contribute to air pollution or is intended primarily to prevent or control the 

emission of air pollutants, unless a permit therefor has been obtained from the board or the 

secretary." The BME is also explicitly authorized to adopt rules setting forth application 

requirements, including the submission of plans, 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 BME to adopt the emissions standards and 

limitations and other measures set forth in the air quality rules (Administrative Rules of South 

Dakota ("ARSD") Article 74:36), including the Regional Haze Program rules in ARSD chapter 

74:36:21. 

II. Applicable Procedural Requirements. 

The State's Administrative Procedures Act establishes the procedures that must be followed by 

an agency in adopting rules. SDCL 1-26-4 et seq. The BME followed these procedures in 

adopting ARSD Chapter 74:36:21, Regional Haze Program. These rules were adopted by the 

BME on September 15,2010, and became effective on December 7,2010. 

III. Legal Authority to Enforce. 

DENR has the authority to enforce the applicable laws, regulations, and air quality standards. 

All of the statutory authorities for rule-making power set forth above contain provisions relating 

to enforcement. SDCL 34A-1-6 and -15 explicitly state that violation of the rules promulgated 

under those statutes is subject to SDCL 34A-I-39. This statute states as follows: 

Any person subject to this section is liable for a civil penalty not to exceed ten 

thousand dollars per day of violation or for damages to the environment of the 

state, or both. 

SDCL 34A-1-21 also contains this language. Additionally, it states: 

A violation of a condition of a permit issued pursuant to this section is subject to 

§ 34A-1-39. Any person who, without a permit, commits an action for which a 

permit is required is guilty of a Class 1 misdemeanor. Any violation of a permit 

condition is a Class 2 misdemeanor and is subject to § 34A-1-39. 

SDCL 34A-1-22 gives the DENR specific authority to "enjoin the construction, modification, or 

operation of any stationary source of air pollution at any location where the emissions from such 

sources will prevent the attainment and maintenance of compliance with rules and regulations 

adopted by the board." The Secretary ofDENR is also given authority in SDCL 34A-1-45 to 

issue emergency orders that are immediately effective: 

Any other provisions of law to the contrary notwithstanding, if the secretary finds 

that any person is causing or contributing to air pollution and that such pollution 

creates an emergency by causing imminent danger to human health or safety and 

requires immediate action to protect human health or safety, the secretary shall 

order such person or persons to reduce or discontinue immediately the emission of 

air contaminants. 
James.B. Martin 

January 18,2011 

Page 4 

These remedies are not exclusive; an action for a civil penalty does not bar enforcement by 

injunction. SDCL 34A-1-52. Further, DENR is not required to exhaust its administrative 

remedies before bringing court action. SDCL 34A-10-16. 

Thus, DENR can enforce applicable laws, regulations, and standards by civil penalty and/or 

injunctive action. DENR can also enforce the requirements to obtain a permit by criminal action. 

SDCL 34A-1-21. 

DENR can abate pollutant emissions on an emergency basis to 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 of an emergency order 

for immediate reduction or discontinuance of emissions, which is effective immediately upon 

service. A hearing process for emergency orders is established, and occurs after the effective 

date of the order. SDCL 34A-I-46. 

DENR has authority to prevent construction, modification, or operation of a facility, building, 

structure, or installation, or combination thereof, which directly or indirectly results or may result 

in emissions of any air pollutant at any location which will prevent the attainment or 

maintenance of a national standard. This authority appears at SDCL 34A-1-22. 

DENR has authority to obtain information necessary to determine whether air pollution sources 

are in compliance with applicable laws, regulations, and standards, including authority to require 

recordkeeping and to make inspections and conduct tests of air pollution sources. The authority 

to adopt rules regarding these requirements appears above. In addition, SDCL 34A-1-11 

authorizes the BME to adopt rules that 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." SDCL 34A-1-12 authorizes the DENR or the BME to 

require the owner or operator of an air contaminant source to require, establish, and maintain 

records, and sample emissions in accordance with specified methods, locations, and procedures. 

SDCL 34A-1-40 authorizes the BME to investigate sources of air emissions; SDCL 34A-1-41 

authorizes DENR to enter and inspect any property which is reasonably believed to be a source 

of air pollution. 

The State's statutes and regulations also require owners or operators of stationary sources to 

install, maintain and use emission monitoring devices and to make periodic reports to the State 

on the nature and amounts of emissions from stationary sources. SDCL 34A-1-12 (reporting); 

SDCL 34A-1-19 (installation, maintenance and use of emission monitoring devices); both 

discussed above. Reporting is required by state law to be made available to the public. SDCL 

34A-1-14 states: 

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 
James B. Martin 

January 18,2011 

Page 5 

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 .... Notwithstanding the provisions of this section, 

all data relating to air pollution emissions as defined in § 34A-1-2, are public 

records, and subject to public disclosure as provided in § 1-40-31. 

These statutes provide legal authority to adopt the Regional Haze rules in ARSD ch. 74:36:21, 

and meet the requirements of 40 C.F.R. 51.230. I have attached a copy of the referenced statutes 

and regulations hereto. 

Very truly 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 

AIR POLLUTION CONTROL PROGRAM 

Definitions. 

Ambient air quality. 

Air quality episodes. 

Operating permits for minor sources. 

Operating permits for Part 70 sources. 

Regulated air pollutant emissions. 

New source performance standards. 

National emission standards for hazardous air pollutants. 

Prevention of significant deterioration. 

New source review. 

Performance testing. 

Control of visible emissions. 

Continuous emission monitoring systems. 

Variances, Repealed. 

Open burning, Transferred or Repealed. 

Acid rain program. 

Rapid City street sanding and deicing. 

Regulations for state facilities in the Rapid City area. 

Mercury budget trading program, Repealed. 

Construction permits for new sources or modifications. 

Regional haze program. 

CHAPTER 74:36:21 

REGIONAL HAZE PROGRAM 

Applicability. 

Definitions. 

Existing stationary facility defmed. 

Visibility impact analysis. 

BART determination. 

BART determination for a BART -eligible coal-fired power plant. 

Installation of controls based on visibility impact analysis or BART 

determination. 

Operation and maintenance of controls. 

Monitoring, recordkeeping, and reporting. 

Permit to construct. 

Permit required for BART determination. 

Federal land manager notification and review. 
74:36:21:01. Applicability. The provisions of this chapter apply to the owner or 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 in this chapter mean: 

(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 on visibility shall be based on a case-by-case basis 

taking into account the geographic extent, intensity, duration, frequency, and time of visibility 

impairment, and how these factors correlate with times of visitor use of a mandatory Class I 

federal area and the frequency and timing of natural conditions that reduce visibility; 

(2) "BART," best available retrofit technology; 

(3) "Best available retrofit technology" an emission limitation based on the degree of 

reduction achievable through the application of the best system of continuous emission reduction 

for each pollutant that is emitted by an existing stationary facility. The emission limitation must be 

established, on a case-by-case basis, taking into consideration the technology available, the costs 

of compliance, the energy and nonair quality environmental impacts of compliance, any pollution 

control equipment in use or in existence at the source, the remaining useful life of the source, and 

the degree of improvement in visibility that may reasonable be anticipated to result from the use of 

such technology; 

(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 of coal 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 if the 98th percentile 

(eighth highest value) of the modeling results, based on one year of the three years of 

meteorological data modeled, equals or exceeds 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 December 7,2010. 

General Authority: SDCL 34A-I-6. 

Law Implemented: SDCL 34A-I-6. 

74:36:21:03. Existing stationary facility defined. An existing stationary facility is any of 

the following stationary sources of air pollutants, including any reconstructed source that was not 

in operation before August 7, 1962, and was in existence on August 7, 1977, and has the potential 

to emit 250 tons per year or more of any air pollutant. In determining potential to emit, fugitive 

emissions, to the extent quantifiable, must be counted for: 

(1) Fossil-fuel fired steam electric plants of more than 250 million British thennal units per 

hour heat input; 

(2) Coal cleaning plants (thennal dryers); 

(3) Kraft pulp mills; 

(4) Portland cement plants; 

(5) Primary zinc smelters; 

(6) Iron and steel mill plants; 

(7) Primary aluminum ore reduction plants; 

(8) Primary copper smelters; 

(9) Municipal incinerators capable of charging more than 250 tons of refuse per day; 

(10) Hydrofluoric, sulfuric, and nitric acid plants; 

(11) Petroleum refmeries; 

(12) Lime plants; 

(13) Phosphate rock processing plants; 

(14) Coke oven batteries; 

(15) Sulfur recovery plants; 

(16) Carbon black plants (furnace process); 

(17) Primary lead smelters; 

(18) Fuel conversion plants; 

(19) Sintering plants; 

(20) Secondary metal production facilities; 

(21) Chemical process plants; 

(22) Fossil-fuel boilers of more than 250 million British thennal units per hour heat input; 

(23) Petroleum storage and transfer facilities with a capacity exceeding 300,000 barrels; 

(24) Taconite ore processing facilities; 

(25) Glass fiber processing plants; and 

(26) Charcoal production facilities. 

Source: 37 SDR 111, effective December 7,2010. 

General Authority: SDCL 34A-I-6. 

Law Implemented: SDCL 34A-I-6. 

74:36:21:04. Visibility impact analysis. The owner or operator of a 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, Subpart W (July 1, 2009). 

Source: 37 SDR 111, effective December 7, 2010. 

General Authority: SDCL 34A-I-6. 

Law Implemented: SDCL 34A-I-6. 

74:36:21:05. BART determination. The owner or operator of 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 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 determination must take into consideration the technology available, the costs 

of compliance, the energy and nonair quality environmental impacts of compliance, any pollution 

control equipment in use at the source, the remaining useful life of the 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 on visibility 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 of a BART-eligible coal-fired power plant may not cause or permit emissions of 

the following regulated air pollutant in excess of the 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 of 0.012 pounds per million Btus, which includes periods of 

startup and shutdown; 

(3) Sulfur dioxide emissions in excess of 505 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 

include periods of startup and shutdown; 

(5) Nitrogen oxide emissions in excess of 561 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 

include periods of startup and shutdown. 

Compliance with the PM 10 emission limits shall be based on an annual stack performance 

test using the average of three 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, effective December 7,2010. 

General Authority: SDCL 34A-1-6. 

Law Implemented: SDCL 34A-1-6. 

74:36:21:07. Installation of controls based on visibility impact analysis or BART 

determination. The owner or operator of a 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 of a BART-eligible source required to install BART must install, operate, 

and demonstrate compliance with Bart as expeditiously as practicable, but no later than five years 

from EPA's approval of the state implementation plan for regional haze. 

Source: 37 SDR 111, effective December 7, 2010. 

General Authority: SDCL 34A-1-6. 

Law Implemented: 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 or BART determination shall 

establish written procedures to ensure the control equipment is properly operated and maintained. 

The written procedures 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-tenn maintenance; 

(2) Procedures for the proper operation and maintenance of each control device; and 

(3) Parameters to be monitored to determine each control device is being operated properly. 

Source: 37 SDR 111, effective December 7,2010. 

General Authority: SDCL 34A-1-6. 

Law Implemented: 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 of a 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 

comply with the requirements in § 74:36:05:16.01(9). 

Source: 37 SDR 111, effective December 7, 2010. 

General Authority: 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 if the department determines that 

the new major source or modification to a major source does not contribute to adverse impact on 

visibility at a mandatory 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 approved by the department. 

Source: 37 SDR Ill, effective December 7, 2010. 

General Authority: SDCL 34A-I-6. 

Law Implemented: 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 if the 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 of a BART 

determination shall include a copy of the BART determination and must be submitted within 30 

days of receipt of a complete BART determination. The department shall consider an analysis 

performed by the federal land manager submitted within 60 days of the federal land manager being 

notified of a BART determination orby the end of the public participation process, whichever is 

later. A permit application for a new major source or modification to a major source shall inchide a 

copy of the 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. 

General Authority: SDCL 34A-I-6. 

Law Implemented: 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 of the environment and natural resources fee fund-Source 

of fund_Administration-Expenditures-Unexpended funds. 

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 of funds to environment and natural resources fee fund from water 

and environment fund. 

Voluntary environmental audits-Assumption against civil or criminal penalties. 

Application of environmental audit provisions-Discovery of violations. 

Environmental audit subject to discovery-Summary of disclosed violation. 

Use of environmental audit as defense. 

Removal of regulated entity from environmental audit provisions. 

Promulgation of rules governing inspection of certain concentrated animal 

feeding operations. 

Commission Note 

SL 1991, ch 17, § 17 (Executive Order 91-4), renamed the "Department of Water and Natural 

Resources" as the "Department of Environment and Natural Resources." The code commission 

has implemented this change in this 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 of Water and Natural Resources, is hereby continued 

Department of Environment and Natural Resources. 

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

Cross References 

in department organization by secretary, see § 1-32-4. 

Library References 

{""'.~stl,"" Key Number Search: 360k45. 

States §§ 79, 82, 136. 

Secretary as head of department 

head of the Department of Environment and Natural Resources is the 

:Crt~talrv of environment and natural resources. 

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

599 
DEPARTMENT 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, radiation monitoring and mineral exploration, and 

control of hazardous materials and wastes-Transfer of personnel and 

budget of Division of Environmental 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 of Environment and Natural Resources. 

Source: SL 1981, ch 374, § 25; SL 1991, ch 17 (Ex. Ord. 91--4), § 17. 

1-40-25. Board of Minerals and Environment-Composition-Appointment 

and terms of members 

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 of the terms of present members of the former Board 

of Environmental 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 of a term shall serve for only the 

unexpired portion of the term. 

Source: SL 1981, ch 374, §§ 19 to 22; SDCL Supp, § 1-43-7.1. 

Library References 

States 0=>45 to 48, 5 I. 

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 

In general 1 and Environment of subject matter jurisdiction, 

particularly where contesting tract owners 

1. In general made general appearance at all proceedings beLack of proper notice to tract owners who fore Board, not once objecting to lack of personCon~sted application for unitization of portion al jurisdiction, 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 of Koch Exploration Co., 1986,387 N.W.2d 

530. Administrative Law And Procedure e=o 

454; Mines And Minerals <s= 92.79 

Unitization order issued by Board of Minerals 

and Environment after defective notice was void 

only as to those persons over whom Board 

failed to obtain personal jurisdiction 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 of Minerals and Environment had 

ject matter jurisdiction over tract owners 

lenging application for unitization of portior" .' 

oil field, pursuant to' statute providing thai 

Board had jurisdiction and authority over aU 

persons and property necessary to effectively 

enforce provisions of chapter regulating 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 of Koch Exploration Co., 1986, 3871~.'IV.L~". 

530. Mines And Minerals e=o 92.79 

1-40-25.1. Board of Minerals and Environment composed in coluo.rmam:el 

with Clean Air Act 

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 and enforcement orders initiated under chapter 34A-1. 

Source: SL 1995, ch 318 (Ex. Ord. 95-2), § 15. 

1-40-26. Officers of Board of Minerals 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 such officers as it deems advisable. A majority of the board members sh,ailJ!1d(mc:e to the 

be required to constitute a quorum. The board shall hold meetings at of the su 

of the chairman or a majority of the members, but there shall be held at re

one meeting every three months. has 

Source: SL 1973, ch 2, § 100; SL 1974, ch 3, § 37; SDCL Supp, §§ 1-38-5,1-43-8. 

Cross References 

Meetings of public agencies, see § 1-25-1 et seq. 

Library References 

States e=o67. 

Westlaw Key Number Search: 360k67. 

C.J.S. States §§ 121, 136 to 138, 140. 

1-40-27. Rejection of applications for certain environmental 

mining, oil, and gas permits 

The secretary may reject an application for any permit filed pursuant to 

I.A:pPilic,:ttil)ns rej

that applica

chapter 1-2

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 of state-Purpose of chapter 

It is hereby declared to be the public policy of the state to achieve and 

maintain reasonable levels of air quality which will protect human health and 

safety, prevent injury to plant and animal life and property, foster the comfort 

and convenience of its inhabitants, promote the economic and social development of the state and, to the greatest degree practicable, facilitate the enjoyment of the natural attractions of the state. It is also declared that local and 

regional air pollution control programs are to be supported to the extent 

practicable as essential instruments for the securing and maintenance of 

appropriate levels of air quality. To these ends it is the purpose of this chapter 

to provide for a coordinated state-wide program of air pollution prevention, 

abatement and control, for an appropriate distribution of responsibilities 

among the state and local units of government, and to facilitate cooperation 

across jurisdictional lines in dealing with problems of air pollution not confined 

within single jurisdictions, and to provide a framework within which all values 

may be balanced in the public interest. 

Source: SL 1970, ch 203, § 1; SDCL Supp, § 34-16A-1. 

Library References 

Environmental Law e=>241, 245. 

Westlaw Key Number Searches: 149Ek241; 

I 49Ek245. 

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 abatement order, 48 A.L.R.3d 795. 

Validity of legislation permitting administrative agency to fix permissible standards of 

pollutant emission, 48 A.L.R.3d 326. 

When statute of limitations begins 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 Practice Aids 

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 .2d 996. 

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 

aof 

to 

Lir 

0, 

anI Ct. 

on 

or 

ted 

ndton 

.Ct. 

AIR POLLUTION CONTROL §34A-I-4 

Notes of Decisions 

In general 1 

1. In general 

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 in this 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 combination thereof; 

(2) "Air pollution," the presence in the outdoor atmosphere of one or more 

air contaminants in such quantities and duration as is or tend to be 

injurious to human health or welfare, animals or plant life, or property, 

or would interfere with the enjoyment of life or property; 

(3) "Board," the Board of Min eta Is and Environment; 

(4) "Department," the Department of Environment and Natural Resources; 

(5) "Emission," a release into the outdoor atmosphere of air contaminants; 

(6) "Person," any individual, partnership, limited liability company, firm, 

association, municipality, public or private corporation, subdivision or 

agency of the state, trust, estate, or any other legal entity; 

(7) "Secretary," the secretary of environment and natural resources. 

Source: SL 1970, ch 203, § 2; SDCL Supp, § 34-16A-2; SL 1973, ch 222, § 1; SL 

1978, ch 250, § 6; SL 1994, ch 351, § 66. 

Commission Note 

SL 1991, ch 17, § 17 (Executive Reorganization Order 91-4), renamed the "Department of Water 

and Natural Resources" as the "Department of Environment and Natural Resources." The Code 

Commission has implemented this change in this section. 

34A-1-3. Repealed by SL 1993, ch 256, § 1 

Historical and Statutory Notes 

The repealed section related to acceptance 

and administration of grants and donations, deposit in treasury. 

34A-1-4. Technical and operational services secured by secretary 

The secretary shall have power to secure necessary scientific, technical, 

administrative, and operational services, including laboratory facilities by contract or otherwise. 

Source: SL 1970, ch 203, § 5 (5); SDCL Supp, § 34-16A-8; SL 1977, ch 280, § 2. 

Cross References 

Office of laboratory 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 of the 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 pursuant to chapter 34-21 which pertain to the release of radioactive substances into the atmosphere. 

Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-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 of rules-Purpose-Violation 

The Board of Minerals and Environment may promulgate rules pursuant to 

chapter 1-26: 

(1) To establish ambient air quality standards; 

(2) To specify kind and composition of fuel sold. stored. or used; 

(3) To establish requirements for open burning; 

(4) To require records and maintenance of records. reports. install. use. 

and maintain monitoring equipment; 

(5) To establish methods including sampling of emissions for air pollution 

sources; 

(6) To establish requirements for methods and installation of machines or 

devices to prevent or significantly reduce air emissions; 

(7) To establish procedures for attainment and maintenance of ambient air 

quality standards; 

(8) To monitor ambient air quality; 

(9) To establish procedures for variances and renewal of variances; and 

(10) To establish air quality standards. requirements and procedures related to incinerators for municipal solid waste. 

A violation of the rules promulgated pursuant to this section is subject to 

§ 34A-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. 

6 
AIR POLLUTION CONTROL 

Cross References 

Agency rulemaking procedure, see § 1-26-4 et seq. 

Limitation on stringency of state rules, see § 1-40-4.1. 

Research References 

Treatises and Practice Aids 

State Environmental Law § 8:5. 

United States Supreme Court 

§ 34A-1-7 

Air quality standards, 

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 of Decisions 

In general 1 

1. In general 

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 of Minerals 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 of the 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 stringency of state rules, see § 1-40-4.1. 

Library References 

Environmental Law *,,272. 

Westlaw Key Number Search: 149Ek272. 

34A-I-7. Employment of personnel 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 out the provisions of this 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 of functions by secretary 

The secretary may delegate to officers and employees of the 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 of department 

The department shall have power to: 

(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 of the outdoor atmosphere of 

this state and the several parts thereof. and make recommendations to 

appropriate public and private bodies 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. Cooperation by 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 respective jurisdictions 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 of this 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 

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ieve 

AIR POLLUTION CONTROL §34A-1-12 

any person from compliance with this chapter, rules and regulations in 

force pursuant thereto, or any other provisions of law. 

Source: SL 1970, ch 203, § 5(6) to (8), (14), (15); SDCL Supp, § 34-16A-17; SL 1977, 

ch 280, § 6; SL 1986, ch 295, § 6. 

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 may be for application to the state as a whole or to any 

designated area of the state, and shall be made with special reference to effects 

on health, economic and social factors, and physical effects on property . 

Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-18; SL 1977, ch. 280, § 7; SL 

1980, ch 238, § 11; SL 1993, ch 256, § 2. 

Cross References 

Agency rulemaking procedure, see § 1-26-4 et seq. 

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-Other information-Violation 

The department or board may require the owner or operator of any air 

contaminant source to establish and maintain such records; make such reports; install, use, and maintain such monitoring equipment or methods; 

sample such emissions in accordance with such methods, at such locations, 

intervals, and procedures as the department or board shall prescribe; and 

provide such other information relative to compliance with this chapter and 

rules and regulations in force pursuant thereto as the department or board may 

require, including the location, size of and height of contaminant outlets, 

processes employed, fuels used and the nature and time periods or duration of 

emissions. Any violator of this section is subject to § 34A-1-39. 

Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-19; SL 1973, ch 222, § 4; SL 

1992, ch 158, § 7 . 

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 to air pollution emissions 

The board shall have power to require access to records relating to emissions 

which cause or contribute to air pollution. 

Source: SL 1970, ch 203, § 5 (4); SDCL Supp, § 34-16A-20; SL 1977, ch 280, § 8. 

34A-1-14. Records and information available to public-Exception to protect trade secrets-Authorized use-Violation as misdemeanor 

Any records, reports, or information obtained by the department or board 

from owners or operators of an air contaminant source or sources shall be 

available to the public, except that upon a showing satisfactory to the board by 

the owners or operators of an air contaminant source that the records, reports, 

or information obtained by the department or board regarding processes or 

production technique are sufficiently unique to affect adversely the competitive 

position of the owner or operator by revealing trade secrets, the department 

and board shall consider the record, report, or information or particular 

portion thereof confidential in the administration of this chapter. Nothing in 

this section prevents the disclosure of otherwise confidential records or information by the department or board, or any department, agency, or officer of 

state government if necessary for the prosecution of violations of the chapter or 

rules promulgated pursuant to this chapter. Nothing in this section prevents 

the use of such records or information by the department, or any department, 

agency, or officer of the state government in compiling or publishing analyses 

or summaries relating to the general condition of the outdoor atmosphere if the 

analyses or summaries do not identify, directly or indirectly, any owner or 

operator or reveal any information otherwise confidential under this section. 

Notwithstanding the provisions of this section, all data relating to air pollution 

emissions as defined in § 34A-I-2, are public records, and subject to public 

disclosure as provided in § 1-40-31. 

A violation of this section is a Class 2 misdemeanor. 

Source: SL 1970, ch 203, §§ 13, 15; SDCL Supp, § 34-16A-21; SL 1973, ch 222, § 5; 

SL 1977, ch 190, § 30; SL 1995, ch 203, § 1. 

Cross References 

Crimes, penalties for classified misdemeanors, see § 22-6-2. 

34A-1-15. Establishment of ambient air quality standards-Violation 

The Board of Minerals and Environment shall promulgate rules pursuant to 

chapter 1-26 to establish ambient air quality standards for the state as a whole 

or for any part of the state. Any person who violates these standards is subject 

to § 34A-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 Number Search: 149Ek256. 

10 
AIR POLLUTION CONTROL §34A-1-18 

Research References 

Treatises and Practice Aids 

Surface Mining And Reclamation Operations 

Under A Federal Program For The State Of 

South Dakota, 47 Federal Register 34760. 

United States Supreme Court 

Air quality standards, 

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 of fuels permitted in state-Violation 

The Board of Minerals and Environment may promulgate rules pursuant to 

chapter 1-26 that specify the kind or composition of fuels permitted to be sold, 

stored or used within the state if it is deemed by the board to be necessary for 

the achievement of ambient air quality standards. Any person who violates 

these rules is subject to § 34A-1-39. 

Source: 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 Law 0=>266, 275. 

Westlaw Key Number Searches: 149Ek266; 

149Ek275. 

34A-l-l 7. Contamination within plant excluded from jurisdiction 

Nothing in this chapter shall be construed to grant to the department or 

board any jurisdiction or authority with respect to air contamination existing 

solely within commercial and industrial plants, works, or shops. 

Source: SL 1970, ch 203, § 17; SDCL Supp, § 34-16A-23. 

Library References 

Environmental Law 0=>285. 

Westlaw Key Number Search: 149Ek285. 

34A-1-18. Emission control and open burning requirements-Local control-Nonconformance as violation 

The Board of Minerals and Environment, for the purpose of controlling 

pollution, shall by rules promulgated pursuant to chapter 1-26 establish emission control requirements and reasonable requirements for open burning. The 

requirements may vary from area to area, as may be appropriate to facilitate 

accomplishment of the purposes of this chapter, and in order to take necessary 

or desirable account of varying local conditions. Any general prohibition 

against all open burning shall be determined by each municipality or by each 

county for areas outside the boundaries of the municipalities. The board may 

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 of state 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 
e 

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5. 

lion 

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ithe 

t the 

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mainteAIR POLLUTION CONTROL §34A-1-21 

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 Number Search: 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 of permit conditions as misdemeanors 

The board may prohibit, by rules promulgated pursuant to chapter 1-26, the 

installation, alteration, or use of any machine, equipment, device, or other 

article which it finds may; cause or contribute to air pollution or is intended 

primarily to prevent or control the emission of air pollutants, unless a permit 

t11~crfor has been obtained from the boaql Qr the secretary. Any person in 

violation of these rules is subject to § 34A-1-39. 

The board may require that applications for such permits shall be accompanied by plans, specifications, and such other information as the board deems 

necessary. 

The board, by rules promulgated pursuant to chapter 1-26, shall provide for 

the issuance, suspension, revocation, and renewal of any permits which it may 

reasonably require pursuant to this section. Procedures shall provide for a 

recommendation on such a permit matter by the secretary with an opportunity 

for a oontestedcase hearing by the board on its own· motion or upon protest by 

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 

secretary consistent with his recommendation. 

A violation of a condition of a permit issued pursuant to this section is subject 

to § 34A-1-39. 

Any person who, without a permit, commits an action for which a permit is 

required is guilty of a Class 1 misdemeanor. Any violation of a permit 

condition is a Class 2 misdemeanor and is subject to § 34A-1-39. 

Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-27; SL 1977, ch 280, § 11; SL 

1980, ch 238, § 16; SL 1991, ch 288, § 5; 8L 1992, ch 158, § 13; SL 1992, ch 254, 

§94. 

Cross References 

;.:' 

CO:'!'tested cases, see § 1-26-16 et seq. 

Cnmes, penalties for classified misdemeanors, see § 22-6-2. 

Deposition of witnesses, see § 1-26-19.2. 

13 
§ 34A-1-21 

ENVIRONMENTAL PROTECTION 

Limitation on stringency of state rules, see § 1-40--4.1. 

Reports required following the issuance of uncontested permits, see § 1-40-29. 

Rules, procedure for adoption, see §§ 1-26-4 to 1-26-14. 

Subpoena and administration of oaths to witnesses, see § 1-26-19.1. 

Library References 

Environmental Law e=>265. 

Westlaw Key Number Search: 149Ek265. 

Research References 

Treatises and Practice Aids 

Surface Mining And Reclamation Operations 

Under A Federal Program For The State Of 

South Dakota, 47 Federal Register 34760. 

34A-1-22. Prevention of stationary pollution sources not in compliance 

The department may enjoin the construction, modification, or operation of 

any stationary source of air pollution at any location where the emissions from 

such sources will prevent the attainment and maintenance of compliance with 

rules and regulations adopted by the board. 

Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, 

§ 34-16A-27.1; SL 1992, ch 158, § 14. 

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. particular manufacturer not to be favored by requirements 

Nothing in § 34A-I-19 or 34A-I-21 shall be construed to authorize the 

board to require the use of machinery, devices, or equipment from a particular 

supplier or produced by a particular manufacturer, if the required performance 

standards may be met by machinery, devices, or equipment otherwise available. 

Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-28. 

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 of emissions. 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 

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AIR POLLUTION CONTROL 

Cross References 

Joint exercise of governmental powers, see § 1-24-1 et seq. 

Subpoena and administration of oaths 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 of air contaminant source. 

Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-43. 

Library References 

Environmental Law e;>249, 256. 

Westlaw Key Number Searches: 149Ek249; 

149Ek256. 

34A-1-39. Civil action for violation of requirements-Penalty-Liability for 

damages to environment-Jury trial 

Any person subject to this section is liable for a civil penalty not to exceed. ten 

thousand dollars per day of violation or for damages to the environment of the 

state, or both. An action for the recovery of a civil penalty shall, upon demand, 

be tried to a jury. 

Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-44; SL 1973, ch 222, § 7; SL 

1977, ch 190, § 31; SL 1977, ch 280, § 13; SL 1988, ch 291, § 17; SL 1990, ch 283, 

§ 2; SL 1992, ch 158, § 15. 

Library References 

Environmental Lawe;>296. 

Westlaw Key Number Search: 149Ek296. 

Research References 

Treatises and Practice Aids 

Environmental Spill Reporting Handbook 

§ 54:2. 

34A-1-40. Investigations on board's own initiative-Petition by local board 

or electors 

The board may upon its own initiative cause to be investigated the alleged 

pollution of the air or any other violation of this chapter including the violation 

of any regulations issued pursuant to this chapter, or such investigation shall be 

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 of witnesses, see § 1-26-19.2. 

Library References 

Environmental Law *'289, 295. 

Westlaw Key Number Searches: 149Ek289; 

149Ek295. 

34A-1-41. Entry for inspection to determine compliance-Refusal of access 

prohibited 

Any duly authorized officer, employee, or representative of the department 

may enter and inspect that part of any property, premise, or place in which he 

has reasonable grounds to believe is the source of air pollution at any reasonable time for the purpose of investigating the air pollution or of ascertaining the 

state of compliance with this chapter and rules 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 

Search warrants, 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 of inspection furnished to owner or operator 

If requested, the owner or operator of the premises inspected pursuant to 

§ 34A-1-41 shall receive a report setting forth all the facts found which relate 

to compliance status. 

Source: SL 1970, ch 203, § 8; SDCL Supp, § 34--16A-47. 

34A-1-43. Hearings by board-Procedural powers 

In addition to any other powers conferred on it by law the board shall have 

power to hold hearings relating to any aspect of or matter in the administration 

20 

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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 

Subpoena powers and taking of depositions, 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 and enforcement of orders 

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 chapter and enforce the same by all appropriate administrative and judicial 

proceedings. 

Source: SL 1970, ch 203, § 5 (3); SDCL SUpp, § 34--16A-49. 

Library References 

Environmental Law <1:=>295. 

WestIaw Key Number Search; 149Ek295. 

34A-1-45. Emergency order for immediate reduction or discontinuanCe of 

emissions 

Any other provisions of law to the contrary notwithstanding, if the secretary 

finds that any person is causing or· contributing to air pollution and that such 

pollution creates an emergency by causing imminent danger to human health 

or safety and requires immediate action to protect human health or safety, the 

secretary shall order 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 Number Search: 149Ek295. 

34A-1-46. Hearing requested on emergency order-Action by board 

Upon the request for a hearing by any person or persons named in an order 

served pursuant to § 34A-I-45, the secretary shall proceed under chapter 1-26. 

FolloWing the completion of such proceedings, the board shall affirm, modify 

or set aside the or,der of the secretary. , 

Source: SL 1970, ch 203, § 11; SDCL SUpp, § 34--16A-51; revised pursuant to SL 1972, 

ch IS, § 4. 

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AIR POLLUTION CONTROL §34A-1-52 

consent agreement instead of initiating proceedings under § 34A-1-47. Any 

consent agreement shall be approved by the board. 

Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-55; revised pursuant to SL 1972, ch 15, § 4; SL 1977, ch 280, § 16. 

Cross References 

Contested case procedure, see § 1-26-16 et seq. 

Subpoena powers and witness fees in administrative proceedings, see § 1-26-19.1. 

34A-1-50. Board orders after hearing 

If, after proceedings held pursuant to § 34A-1-48 or 34A-1-49, the board 

finds that a violation or violations have occurred, it shall affirm or modify any 

order previously issued under § 34A-1-47 by the board chairman, or issue an 

appropriate order or orders for the prevention, abatement, or control of the 

emissions or air pollution involved. If, after proceedings on an order contained 

in a notice the board finds that no violation is occurring, it shall rescind the 

order. 

Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-57; SL 1977, ch 280, § 17. 

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 by which the violation or violations shall cease 

and may prescribe timetables for necessary action in preventing, abating, or 

controlling the emissions of air pollution. 

Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-58. 

Library References 

Environmental Law *,,293, 295. 

Westlaw Key Number Searches: 149Ek293; 

149Ek295. 

34A-1-52. Enforcement remedies not barred by actions for penalties 

Action pursuant to § 34A-1-39 or the second paragraph of § 34A-1-14 shall 

not be a bar to enforcement of this chapter or rules in force pursuant thereto, 

and orders made pursuant to this chapter by injunction or other appropriate remedy. 

Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-59; SL 1977, ch 280, § 18. 

Library References 

Environmental Law e;.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, or destruction. 

Source: SL 1973, ch 144, § 5 (1); SDCL Supp, § 21-lOA-11. 

See Mich Comp Laws 1970, § 691.1204 (I). 

34A-I0-12. Apportionment of costs 

Costs may be apportioned to the parties if the interests of justice require. 

Source: SL 1973, ch 144, § 4 (3); SDCL Supp, § 21-10A-12. 

See Mich Comp Laws 1970, § 691.1203 (3). 

34A-I0-13. Collateral estoppel-Res judicata 

The doctrines of collateral estoppel and res judicata shall be applied by the 

court to prevent multiplicity of suits. 

Source: SL 1973, ch 144, § 6 (3); SDCL Supp, § 21-10A-13. 

See Mich Comp Laws 1970, § 691.1205 (3). 

Cross References 

Res judicata as affirmative defense, see § 15-6-8(c). 

34A-IO-I4. Chapter supplementary to other procedures 

This chapter shall be supplementary to existing administrative and regulatory 

procedures. 

Source: SL 1973, ch 144, § 7; SDCL Supp, § 21-lOA-14. 

See Mich Comp Laws 1970, § 691.1206. 

Cross References 

Air pollution control, see§ 34A-l-l et seq. 

Water pollution control, see § 34A-2-1 et seq. 

34A-IO-I5. Citation of chapter 

This chapter shall be known and may be cited as the "South Dakota 

Environmental Protection Act of 1973." 

Source: SL 1973, ch 144, § 1; SDCL Supp, § 21-10A-15. 

See Mich Comp Laws 1970, § 691.1201. 

34A-IO-I6. Enforcement action by department 

The department need not exhaust its administrative remedies, if any exist, 

before commencing any action to enforce the provisions of Title 34A, 45, or 46. 

Source: SL1991,ch288,§ 17. 

Library References 

Environmental Law €=>665. 

Westlaw Key Number Search: 149Ek665. 

238 
CHAPTER 21-8 

INJUNCTION 

Kinds of injunctive relief. 

Section 

21-8-1. 

21-8-2. 

21-8-3. Purposes for which injunction prohibited. 

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 

during pendency of action. ' 

21-8-7. Notice required before restraining order or preliminary injunction to 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 of pleading and affidavit. 

21-8-10,21-8-11. Repealed. 

21-8-12. Order granting restraining order or preliminary injunction. 

21-8-13. Repealed. 

21-8-14. Circumstances permitting grant of permanent injunction. 

21-8-15. Permanent injunction by judgment or decree in civil action-Procedure. 

21-8-16. Judicial power to restrain or enjoin violations of obscenity laws. 

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 matter disseminated to minors. 

Cross References 

Attachment of properly pending litigation, see § 21-17A-1 et seq. 

Original proceedings 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). 

Stay of proceedings, appeal does not stay injunction unless ordered, see § 15-6-62(a). 

United States Code Annotated 

Injunctions, stay of state court proceedings, see 28 U.S.C.A. § 2283. 

21-8-1. Kinds of injunctive 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 

referred to 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,