Program Description

South Dakota Department of Environment and Natural Resources

Hazardous Waste Program

March 2010
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Table of Contents

Page

SECTION I. INTRODUCTION........................................................................................ 5

SECTION II. PROGRAM SCOPE, STRUCTURE, COVERAGE, AND PROCESSES... 7

A. Scope and Coverage of Program Revision ...................................................... 7

1. Program overview......................................................................... 7

2. Identification of rules/checklists for which state is seeking authorization... 7

B. Comparison of Federal and State Regulations................................................ 8

1. Equivalency ............................................................................................... 8

2. Areas the state program differs from federal ............................................. 8

Table 1..............................................................................................10

SECTION III. STATE AGENCY RESPONSIBILITIES ................................................. 11

A. Organization and Structure of the Hazardous Waste Program .................... 11

1. Identification of state agency responsible for administering program ...... 11

2. Structure of state agency......................................................................... 11

a. Divisions, program areas and subunits within the agency ............ 11

b. Division of responsibilities among state agencies......................... 11

B. Division of Responsibility Between the State and EPA ................................ 12

SECTION IV. STAFFING AND FUNDING RESOURCES............................................ 13

A. Description of Staffing of Agency .................................................................. 13

1. Number of staff ........................................................................................ 13

2. Occupations............................................................................................. 13

3. General duties ......................................................................................... 13

B. Overall Changes in Existing Resources for Previously Authorized Program

1. Changes in staffing, internal reorganizations, and shifts in priorities ....... 14

2. Changes in size of the regulated community since previous authorization14

3. Program changes that have significant impact on State’s efficiency 

and existing program resources............................................................... 15

C. Itemization of Estimated Costs and Sources of Funding for Revision........ 17

1. Personnel................................................................................................. 17

2. Funding.................................................................................................... 17

a. Estimated program and technical support costs ........................... 17

b. Sources and amounts of available funding ................................... 18

SECTION V. STATE PROCEDURES, PERMITTING PROGRAM AND 

 COORDINATION WITH OTHER AGENCIES AND PERMITTING ....... 19

A. Regulatory Development ................................................................................. 20

B. Notification........................................................................................................ 20

C. Manifest Tracking System ............................................................................... 21

D. Coordination of Information Regarding Interstate and 

International Shipments................................................................................... 21
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E. Permitting.......................................................................................................... 21

1. Permit application .................................................................................... 22

2. Permit application review process ........................................................... 22

3. Addressing permit application deficiencies .............................................. 23

4. Draft permit and public notice .................................................................. 24

5. Public participation and permit issuance.................................................. 24

6. Permit modification, renewal, revocation and reissuance, 

and termination ........................................................................................ 24

7. Interaction with enforcement personnel................................................... 26

8. Routine review of facility operation .......................................................... 26

9. Reports and information required by the state......................................... 27

10.Other types of permits ............................................................................. 27

11.Joint permitting ........................................................................................ 27

F. Interim Status.................................................................................................... 28

G. Biennial Reports............................................................................................... 28

H. General Inspections and Enforcement Actions............................................. 28

I. Groundwater Monitoring Inspections............................................................. 32

J. Waste Minimization and Pollution Prevention .............................................. 32

K. Availability of Information................................................................................ 33

L. Appeals.............................................................................................................. 34

SECTION VI. COMPLIANCE TRACKING AND ENFORCEMENT.............................. 35

A. Identification of Members of the Regulated Community............................... 35

1. Identification of revisions that have the potential to significantly increase 

the size of the RCRA universe................................................................. 35

2. Strategies and methods for identifying new members of the 

regulated community ............................................................................... 35

B. Inspections and Analysis Workload ............................................................... 37

1. Types of inspections needed to monitor compliance with new 

program activities..................................................................................... 37

2. Additional sampling and analysis needed to monitor compliance 

with new program activities...................................................................... 37

3. Impact on compliance monitoring of existing program............................. 38

C. Data Management............................................................................................. 38

D. Compliance Monitoring Resources ................................................................ 38

1. Resource adjustments for new program activities...............................38

a. Increased technical expertise........................................................ 38

b. Additional laboratory support ........................................................ 39

2. Resources that the State has available to handle 

new responsibilities.................................................................................. 39

a. Plans for training staff ................................................................... 39

b. Plans for hiring additional staff...................................................... 39

c. Agreements with other State agencies ......................................... 40

d. State plans to use contractor assistance ...................................... 40

E. Enforcement Process....................................................................................... 41

1. Enforcement procedures ........................................................................ 41

2. Enforcement of corrective action conditions.......................................42

3. Penalties and violations ........................................................................... 42
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4. Time frames for enforcement actions ...................................................... 42

5. Enforcement resources............................................................................ 43

6. Enforcement agreements...............................................................43

SECTION VII. ESTIMATED REGULATED ACTIVITIES.............................................. 44

Table 2 ............................................................................................................... 44

SECTION VIII. STATE FORMS .................................................................................... 45

1. Regulated waste activity notification ................................................47

2. Part A permit application................................................................48

3. Biennial Report............................................................................49

4. Uniform hazardous waste manifest (example)....................................50

5. Hazardous waste pre-inspection report format................................ ...51

6. Notice of Inspection form................................................................52

7. RCRAInfo compliance evaluation form..............................................53

8. Hazardous waste inspection report format.........................................54

9. DENR penalty policy guidance and worksheet....................................55

SECTION IX. APPENDIX A - DENR Organizational Chart ........................................ 56
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SECTION I

INTRODUCTION

The Resource Conservation and Recovery Act (RCRA) and the Hazardous and Solid 

Waste Amendments (HSWA) to RCRA gave authority to the Environmental Protection 

Agency (EPA) to promulgate regulations that “...promote the protection of health and 

the environment and to conserve valuable material and energy resources (RCRA 

Section 1003 (a)).” One of the objectives identified under RCRA is to “establish a viable

Federal-State partnership.... [and] give a high priority to assist and cooperate with 

States in obtaining full authorization of State programs under subtitle C (RCRA 1003 

(a)(7)).” The following Program Description (PD) is part of the application process to

assure EPA that South Dakota is capable of managing hazardous wastes under our 

state program in lieu of EPA’s program, and thus facilitate reauthorization.

The South Dakota Department of Environment and Natural Resources (DENR) 

is the agency responsible for administering all solid and hazardous waste 

regulations for the State of South Dakota. This document provides a description 

of the hazardous waste regulatory program administered by DENR. It replaces 

the September 1995 Program Description (PD) previously submitted as a part of 

the State's revision applications.

This PD reflects the evolution of the State's program since EPA authorized the 

base program, as well as subsequent revision authorizations. It also 

summarizes how the State implements Federal regulatory requirements for the 

base program, as well as HSWA and Non-HSWA Clusters I through XVII. This 

PD has been prepared in accordance with the requirements of Title 40 Code of 

Federal Regulations (40 CFR), part 271 section 6.

The report is organized as follows: 

Following Section I – Introduction, Section II describes the scope, structure, 

coverage, and process of the hazardous waste program. It includes a discussion 

of the legislative and regulatory provisions the state administers as well as a 

discussion of the differences between the federal and state laws and regulations. 

Attachment 3 of the Attorney General’s Statement (submitted Jun 2009) includes 

checklists to provide information on both HSWA and non-HSWA activities, 

identifying program areas for which the state is seeking authorization. Section III 

provides a description of DENR’s structural divisions, with the aid of an 

organizational chart included in Appendix A. That section also discusses specific 

divisions that comprise DENR , examines their individual responsibilities, and

includes a description of the responsibilities and procedures for coordinating

among various programs and EPA. 

Section IV deals with staffing and funding procedures and identifies hazardous waste 

staff and funding resources required to carry out activities that are the subject of this 
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program revision. Section V describes the state procedures that will be used to 

implement the program revision. Section VI examines the state’s compliance tracking 

and enforcement processes and resources. Section VII provides estimated regulated 

activities as of the date of this PD, and Section VIII contains copies of state forms.

Section IX contains other attachments, pertinent to the subject matters discussed in the 

body of the document.

It is important to realize while reading this PD, that the information provided herein reflects 

South Dakota’s program as currently authorized and outlines updated elements for which the 

state is seeking authorization. This PD offers the most up-to-date information on the state’s 

hazardous waste section; yet it offers a view that is a snap-shot in time. Program information 

that has already been authorized will, as a necessity, be discussed here because it is an 

integral part of how the state implements its statutes and rules. Emphasis is placed on that 

information for which the state is seeking authorization, which is specified in Section II.A.2.
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SECTION II

PROGRAM SCOPE, STRUCTURE, COVERAGE, AND PROCESSES

(40 CFR 271.6(a))

A. Scope and Coverage of Program Revision

1. Program overview

Under South Dakota Codified Law (SDCL) 34A-11-1, the statute states: 

“it is the public policy of this state to regulate the control and generation, 

transportation, treatment, storage and disposal of hazardous wastes to 

protect the public health, safety and welfare, protect the environment, 

prevent pollution of air, water, soil and other natural resources of this 

state, and prevent the creation of nuisances.” To implement and enhance 

this public policy DENR has developed a comprehensive regulatory 

program of hazardous waste management that includes all aspects of 

generation, transportation, storage, treatment, and disposal of hazardous 

waste. The program encompasses the necessary requirements to control 

the management of hazardous waste from the point of generation to final 

disposal. Our program regulates entities who generate, transport, store, 

treat and dispose of all hazardous wastes identified in 40 CFR 261, as 

codified up to July 1, 2008. SDCL Sections 1-40-4.1 and 34A-11-1.1

specify that the state hazardous waste regulations must be no more 

stringent than corresponding EPA hazardous waste regulations; it is for 

this reason the state adopts the federal hazardous waste rules by 

reference.

To date, the state has amended its hazardous waste rules to include all 

final regulations promulgated by EPA as of July 1, 2008, including 

regulations promulgated under the authority of HSWA. These rules are 

identical, with the exception of two instances identified below (see Section 

II.B.2), to the EPA regulations found in 40 CFR, Parts 260 through 279. 

Portions of 40 CFR 124 are adopted by reference as of July 1, 1998; 

however, other portions of 40 CFR 124 are part of the state’s 

Memorandum of Agreement rather than being adopted by reference as 

part of our state rules.

2. Identification of exact rules/clusters for which the state is seeking 

authorization

South Dakota received final authorization for its base program on 

November 2, 1984, at 1:00 p.m.; to regulate the management of 

hazardous waste in accordance with regulations promulgated by EPA as 

of July 1, 1984. Subsequent authorizations were granted on April 17, 

1991, effective June 17, 1991; September 8, 1993, effective November 8, 

1993; January 10, 1994, effective March 11, 1994; July 24, 1996, effective 
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September 23, 1996; May 9, 2000, effective June 8, 2000, April 23, 2004, 

effective May 24, 2004; and March 8, 2006, effective March 8, 2006. 

At this time, the state seeks authorization for those regulations codified 

through July 1, 2007; as represented by the following rule clusters and 

checklists: non-HSWA Cluster XIV, checklists 203, 204, and 205; HSWA 

Cluster XV, checklist 206; HSWA/non-HSWA Cluster XV, checklists 207, 

208, and; non-HSWA Cluster XVI, checklists 209, 210, and 211; 

HSWA/non-HSWA Cluster XVI, checklists 212 and 213; HSWA/nonHSWA Cluster XVII, checklist 214, and HSWA Cluster XVII, checklist 215.

Copies of each of the referenced checklists are included in the Attorney 

General’s Statement (see Attachment 3 of the Attorney General’s 

Statement).

The state of South Dakota adopts the federal hazardous waste 

regulations by reference. By adopting these regulations, the state 

incorporates the federal requirements listed in the clusters and checklists 

above into the state rules. As will be explained in detail under Section II.B 

and Sections V and VI of this PD, implementation of the state’s hazardous 

waste statutes and rules ensures overall equivalency to the Federal 

program. 

B. Comparison of Federal and State Regulations

1. Equivalency

South Dakota, through its statutes and regulations, has maintained a 

program equivalent to EPA’s hazardous waste program since 1984. 

SDCL 34A-11 gives DENR the authority to promulgate hazardous waste 

rules. According to SDCL 34A-11-1.1, South Dakota’s hazardous waste 

rules cannot be more stringent than EPA’s regulations. Conversely, 

RCRA Section 3009 states “...no State...may impose any requirements 

less stringent than those authorized under this subtitle.” As a result, the 

state adopts the federal hazardous waste regulations by reference. 

These rules are found under the Administrative Rules of South Dakota 

(ARSD ) Chapter 74:28, revised as of October 2008. A copy of the state’s 

hazardous waste statutes and rules are attached (see Attachment 4 of the 

Attorney General’s Statement). 

2. Areas the state program differs from the federal program

SDCL 34A-11-1.1 states: “Any rule adopted pursuant to this chapter may 

not be more stringent than those promulgated by the U.S. Environmental 

Protection Agency under authority of national laws governing the control 

of hazardous wastes except that the Board of Minerals and Environment 

shall promulgate rules for the treatment, storage and disposal of 

polychlorinated biphenyls.” Accordingly, the state has adopted by 
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reference not only the federal hazardous waste regulations, but a portion 

of the federal rules that govern the treatment, storage and disposal of 

PCBs. Also, SDCL 34A-11-12 states: “Any permit granted by the board 

under this section is initially valid for two years from the date of issuance 

and may be renewed for periods of five years.” 

As indicated above, South Dakota has adopted EPA’s regulations 

governing the management of hazardous waste by reference with the 

exception of some procedural or optional regulations that are found in 40 

CFR 124. Specific sections adopted by reference include 40 CFR 

124.1(b), 124.2(a), 124.3(a), 124.5(a), 124.5(c), 124.6(a), (b) and (d), 

124.11, 124.31(b), (c) and (d), 124.32(b) and (c) and 124.33(b) through 

(f), and 124.200 to 124.214, inclusive (all July 1, 2008). The procedural 

or optional requirements of 40 CFR 124 are addressed in the 

Memorandum of Agreement and the Attorney General’s Statement, both 

of which are part of this revision authorization package. 

As a result of items II.B.1 and II.B.2 discussed above, South Dakota’s 

hazardous waste rules are considered both equivalent to, and no less 

stringent than, the federal regulations.
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Table 1

General Correlation Between State Regulations

and Federal Regulations

EPA REGULATION

Code of Federal 

Regulations (40 CFR)

Revised as of July 1, 2007

STATE 

REGULATION

DESCRIPTION

PART 260 ARSD 74:28:21:01 Hazardous waste management system: 

General

PART 261 ARSD 74:28:22:01 Identification and listing of hazardous waste

PART 262 ARSD 74:28:23:01 Standards applicable to generators of 

hazardous waste

PART 263 ARSD 74:28:24:01 Standards applicable to transporters of 

hazardous waste

PART 264 ARSD 74:28:25:01 Standards for owners and operators of 

hazardous waste treatment, storage, and 

disposal facilities

PART 265 ARSD 74:28:28:01 Interim status standards for owners and 

operators of hazardous waste treatment, 

storage, and disposal facilities

PART 266 ARSD 74:28:27:01 Standards for the management of specific 

hazardous wastes and specific types of 

hazardous waste management facilities

PART 267 ARSD 74:28:25:01 Standards for owners and operators of 

hazardous waste facilities operating under a 

standardized permit

PART 268 ARSD 74:28:30:01 Land disposal restrictions

PARTS 270/124 ARSD 74:28:26:01 The Hazardous Waste Permit Program

PART 273 ARSD 74:28:33:01 Standards for universal waste management

PART 279 ARSD 74:28:27:01 Standards for the management of used oil
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SECTION III

STATE AGENCY RESPONSIBILITIES

(40 CFR 271.6(b))

A. Organization and Structure of the Hazardous Waste Program

1. Identification of state agency responsible for administering program

DENR is the lead agency responsible for administering the state’s 

hazardous waste management program. This department conducts 

hazardous waste generator and permitted hazardous waste facility 

inspections (note: other than one permitted hazardous waste storage 

facility, no other permitted hazardous waste facilities currently exist in the 

state). DENR also conducts sampling inspections, takes necessary 

enforcement actions to ensure regulated entities comply with state

statutes and regulations, and reviews permit applications. The South 

Dakota Board of Minerals and Environment (BME) issues hazardous 

waste permits with recommendations from DENR program staff. BME is a 

citizens’ board within DENR, comprised of members appointed by the 

Governor, that performs quasi-legislative, quasi-judicial, advisory and 

special budgetary functions relating to the management of hazardous 

waste in South Dakota. 

The DENR, known as the Department of Water and Natural Resources up 

to 1991, has been and is currently the agency responsible for 

administering the previously authorized hazardous waste program. DENR

is also responsible for administering program revisions.

2. Structure of state agency

a. Divisions, program areas, and subunits within the agency

DENR is responsible for the regulation of all aspects of hazardous 

waste generation, transportation, treatment, storage, and disposal 

that occurs in this state. In particular, the Division of Environmental 

Services’ Waste Management Program within DENR is responsible 

for carrying out all hazardous waste regulatory activities. Appendix

A of this PD includes a copy of DENR’s organizational chart.

b. Division of responsibilities among state agencies – assistance by 

the state Highway Patrol regarding the transportation of hazardous 

waste

The South Dakota Highway Patrol has adopted the federal 

Department of Transportation regulations for the transport of 
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hazardous materials, of which hazardous waste is a subset. 

Presently, the Highway Patrol has four permanent ports of entry 

and eight mobile units. Trucks are checked at these locations. In 

addition to reviewing driver’s logs, highway patrol officers inspect 

the material being transported against manifests and other shipping 

documents. Other aspects such as vehicle placards are also 

inspected. In this way, the South Dakota Highway Patrol enforces 

regulations for hazardous waste transportation across the state’s 

road and highway systems, while DENR regulates all other aspects 

of hazardous waste management and transportation.

B. Division of Responsibility Between the State and EPA

At the time of this writing, DENR has adopted the federal hazardous waste 

regulations by reference through July 1, 2008, for those regulations found in 40 

CFR Parts 260 through 279. To date, the state has received authorization from 

EPA for state rules that adopt federal regulations revised through June 30, 2003. 

EPA retains, under federal authority to enforce in South Dakota , the federal 

rules finalized July 1, 2004 and thereafter. This will hold true until authorization 

is granted. However, because the state has adopted the federal requirements 

codified from July 1, 2004 through June 30, 2008, in accordance with state law, 

South Dakota retains the authority to enforce these rules. 

With this application, the state provides EPA with the assurance that the state’s 

program is equivalent to EPA’s. Upon reauthorization; the state will be given 

EPA’s authority to enforce state hazardous waste rules in lieu of EPA within the 

boundaries of the state (excepting areas under Tribal jurisdiction).

Joint permitting and joint inspections may still be conducted due to the ever 

changing regulations. EPA will retain its responsibility to ensure “full and faithful” 

execution of RCRA/HSWA, including direct implementation in the event the state 

is unable to take action. Joint inspections may be conducted when the state has 

not yet adopted certain requirements; and EPA may enforce those regulations 

(such as HSWA provisions) in the state. This joint inspection/enforcement 

process has been implemented previously and works well. Once the state 

receives authorization, EPA will assume an oversight role for those provisions 

the state is authorized to enforce. More discussions regarding procedures are 

addressed in the MOA and in the procedures section (Section V) of this PD.
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SECTION IV

STAFFING AND FUNDING RESOURCES

(40 CFR 271.6(b)(1)-(3))

A. Description of Staffing of Agency

1. Number of staff

A total of eight and one-half full time equivalent (FTE) employees work in 

the hazardous waste program. Four of the eight are full-time hazardous 

waste program employees; the rest of the staff are made up of support 

people who assist with hazardous waste programs duties. These 

individuals include those who provide secretarial, administrative, 

managerial, peer review, and legal assistance.

2. Occupations

DENR’s hazardous waste program employees have technical expertise 

and educational backgrounds in the areas of engineering, hydrology, 

chemistry, and biological sciences. Engineers in the program are 

responsible for permitting hazardous waste facilities, conducting 

inspections, and providing companies with pollution prevention/waste 

minimization options. The hydrologist reviews geologic and groundwater 

information relating to site contamination as well as some permitting 

considerations. The chemist and biological scientists conduct inspections, 

review product information and waste analyses to assist companies with 

waste determinations and waste minimization opportunities. 

3. General duties

Three of the four full-time hazardous waste program personnel are 

responsible for conducting hazardous waste inspections. In addition, one 

engineering personnel are primary in carrying out permitting 

responsibilities, which includes reviewing annual waste analyses, financial 

assurance and permit modifications. The other engineering position is 

also responsible for managing the program’s hazardous waste database 

and integrating that data into DENR’s environmental data system, as well 

as maintaining DENR’s system. The program’s staff person who has 

technical and educational expertise in chemistry and biological sciences 

also is the primary contact for reviewing waste analyses and product 

information. Working as a team, all three individuals offer companies 

options for minimizing waste and considering product substitutions to 

reduce the amount or toxicity of their hazardous wastes. The fourth fulltime program employee is responsible for work-directing the three 

inspectors, reviewing inspection reports, assessing and compiling 

enforcement actions, conducting enforcement and penalty negotiations,
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preparing program policy documents, preparing the hazardous waste 

section of DENR’s EPA/State Performance Partnership Agreement, 

tracking program accomplishments to ensure program commitments are 

met, preparing hazardous waste rule updates and program authorization 

packages, and conducting some compliance evaluation and compliance 

assistance inspections.

Other personnel assisting with hazardous waste program duties include 

representatives of the Attorney General’s Office, department upper 

management staff, the hydrologist with DENR’s solid waste program, and 

administrative assistants responsible for incoming and outgoing mailings, 

phone calls, and document filings. The state Attorney General’s Office 

provides an Assistant Attorney General to review hazardous waste 

enforcement actions, consult regarding case-specific legal issues, review

program authorization documents, and provide the Attorney General 

Statement. DENR upper management provides general program 

direction in addition to conducting reviews and final approval of all formal 

enforcement actions, policy documents, and Performance Partnership 

Agreements.

B. Overall Changes in Existing Resources for Previously Authorized Program

1. Changes in staffing, internal reorganizations, and shifts in priorities

Since submitting the previous PD, the state increased the number of 

hazardous waste FTE from eight, to eight and one-half. In addition, the 

state eliminated the formal designation of “Regional Offices”, that were 

located in Sioux Falls, Rapid City and Watertown. Although some DENR 

personnel continue to live in those areas and work out of local offices, 

those individuals are no longer supervised by a Regional Office 

Administrator, but rather are supervised directly by the responsible

Program Administrator in Pierre. Elimination of the Regional Office 

designation facilitates consistency within each DENR program. With the 

exception of one engineer and one administrative staff located in Rapid 

City, the state’s hazardous waste program staff are located in Pierre. 

2. Changes in size of the regulated community since previous authorization

Permitted facilities: Since the latest submission of the PD, the number of 

permitted hazardous waste facilities in South Dakota has decreased from 

three to one. The two closed facilities are both associated with Ellsworth 

Air Force Base, Ellsworth, SD. One was a permitted hazardous waste 

storage facility that had been in existence since 1984; the second was a 

permitted storage area that had not been constructed. Because Ellsworth 

AFB determined they could manage their hazardous wastes under the 90-

day Large Quantity Generator (LQG) requirements, they clean closed the 

existing facility and terminated the permit for the yet-to-be-constructed 

facility. The single permitted hazardous waste facility remaining in the 
15

state is a commercial storage facility owned and operated by Safety-Kleen 

Systems, Inc. Safety-Kleen’s permitted Service Center is located in Sioux 

Falls, SD.

Generators: Since the latest submission of the PD, the number of LQGs 

in the state has risen, ranging from 15 to 24 companies. Of those 

companies, approximately 20 companies have consistently been LQGs 

over the past three biennial reporting periods, while the remainder were

companies generating a large amount of waste on a one-time or 

inconsistent basis. Waste minimization opportunities implemented by 

companies within the state previously regulated as a Small Quantity 

Generator (SQG), reduced the number of SQGs from approximately 800 

to 600 since the latest submission. Implementation of product substitution 

opportunities played a large role in enabling companies to reduce their

waste generation quantities to levels regulated as a Conditionally-Exempt 

Small Quantity Generator (CESQG). These efforts were especially noted

among companies that switched from using chlorinated solvents (i.e.,

vapor degreasers such as 1,1,1-trichloroethylene, and chlorinated or 

ignitable solvents) to aqueous detergent solutions or high-flashpoint

solvents in parts-washing operations. The EPA RCRAInfo database 

currently lists over 980 companies in the state as CESQGs. However,

DENR estimates the actual number might be nearly twice that amount

because CESQG companies are not required to notify of their hazardous 

waste activity.

Transporters: The RCRAInfo database lists a total of two commercial

hazardous waste transportation operations. Both active operations are

located in eastern South Dakota: Safety-Kleen Systems 

(SDD000716696) is located in Sioux Falls and the second, Ross 

Management (SDD034760462), is located in Colman. Safety-Kleen 

Systems specializes in the transportation and service of hazardous and 

non-hazardous industrial cleaning solvents. Ross Management 

specializes in servicing Polychlorinated Biphenyl (PCB) items and off-site 

transportation of hazardous wastes. 

3. Program changes that have significant impact on state’s efficiency and 

existing program resources

Since the latest PD submission, the hazardous waste program’s FTE level

has increased from eight to eight and one-half. One and one-half of the

hazardous waste staff are located in DENR’s office in Rapid City, and the 

remainder are located in Pierre. Previously, DENR also had hazardous 

waste staff in Sioux Falls. The decision to move a majority of the Sioux 

Falls FTE to Pierre was an effort to increase communication and 

coordination among staff. However, the staff consolidation also increased

travel time for staff conducting inspections in the eastern one-quarter of 

the. To compensate, inspectors coordinate inspection trips with other 

DENR programs when feasible, and staff have increased the number of 
16

inspections conducted during each out-of-town trip. Because of the 

distance between Pierre and most cities, staff have increasingly come to 

rely on local officials’ eyes, experience, and assistance. In instances such 

as complaints or emergency calls, staff can contact city or county law 

enforcement when complaints require immediate attention. That provides 

initial attention to the issue and allows additional time for hazardous waste 

staff to reach the site, when needed.

While the number of hazardous waste staff has increased by one-half 

FTE, the number of inspection commitments for the federal fiscal year has

increased from 50 to a minimum of 75. Inspection and oversight 

responsibilities for permitted facilities has decreased from essentially two

to one. However, the actual work load required has been affected 

minimally. As indicated earlier, the latest PD encompassed responsibility 

for three permitted facilities: two at Ellsworth AFB and one at Safety-Kleen 

Systems. The two EAFB permits represented a constructed, operating 

storage area, and a yet-to-be-constructed but permitted storage area. As 

such, the permitted constructed facility required annual inspections and 

record reviews. Because the EAFB storage facility was not a commercial 

entity, few permit modifications occurred. Also, because permitted federal 

facilities are not required to obtain financial assurance, no financial 

assurance reviews were conducted. Because the second EAFB permit 

was not constructed prior to closure, no inspections were conducted of 

that entity, only permit renewal and eventual termination duties were 

conducted. Following closure of their permitted storage facility, EAFB 

completed construction of the storage building previously proposed. 

While they no longer conduct storage operations under a hazardous 

waste permit, EAFB continues to generate significant hazardous waste 

quantities and uses the new building for 90-day storage. Therefore, 

DENR staff continue to conduct annual inspections at EAFB that 

frequently include review of the those storage operations, in conjunction 

with reviews of other operational areas at EAFB. 

Past and current responsibilities for the Safety-Kleen commercial storage 

facility have remained fairly constant, and requires regular review. 

Oversight of the Safety-Kleen facility involves conducting annual 

inspections, reviewing and approving permit modifications, tracking and 

reviewing financial assurance updates, and addressing issues or 

questions that typically arise at least once or twice each month. From a 

Corrective Action standpoint, as of June 2007 Safety-Kleen successfully 

addressed and clean-closed an on-site spill. No additional activities are 

anticipated regarding that issue; however, should the need arise, staff will 

address any issues or new releases that occur.

Because the state’s hazardous waste program has essentially three 

individuals conducting a minimum of 75 inspections, the number of report 

reviews, follow-up activities, and informal enforcement actions has 

increased since the latest PD submission. The number of formal
17

enforcement actions remains fairly stable, at one or two issuances each 

year. This stabilized level is indicative of a mature hazardous waste

program; reflecting increased knowledge of the regulated community

largely resulting from the successful dissemination of information by staff 

through inspections, phone calls and written correspondence. The high 

(100 percent) return-to-compliance rate of companies that receive 

enforcement actions attests to the effectiveness of the DENR program.

C. Itemization of Estimated Costs and Sources of Funding for Revision

1. Personnel

DENR is committed to maintaining the staff level and technical mix 

necessary to administer the state’s hazardous waste program. 

Occasional upsets in the staffing may occur due to staff turnover; 

however, overall, the knowledge required of staff in the program include 

aspects of biology, chemistry, engineering, geology, and hydrology. 

Positions are filled with individuals qualified in these areas. 

As indicated previously, the state’s hazardous waste program employs 

eight and one-half full-time-equivalent (FTE) personnel. One FTE as well 

as a portion of another, who contributes administratively, are located in 

DENR’s Rapid City office, while the remaining individuals are located in 

Pierre. Staff working in the hazardous waste program have longevity and 

a great deal of experience. The Natural Resources Engineering Specialist

working in the Rapid City office has worked in the program since 1993, 

and has five additional years experience working in the hazardous waste 

field for consulting engineering and hazardous waste management 

companies. The other two individuals, a Natural Resources Project 

Engineer and Environmental Project Scientist, have been working for the 

hazardous waste program since 2006 and 2007, respectively. The 

hazardous waste program’s team leader is an Environmental Senior 

Scientist who has been with the Waste Management Program for a total 

of 21 years, 20 of those years with the hazardous waste program. The 

Waste Management Program’s administrator has been with DENR for a 

total of 29 years, the last 13 years serving as the Waste Management 

Program administrator and prior to that as the hazardous waste program’s 

team leader. The experience and longevity of the staff contribute to a 

mature, stable hazardous waste program, one that offers excellent 

mentorship to new employees which in turn contributes to the continued 

strength of the state’s program.

2. Funding

a. Estimated program and technical support costs

Costs associated with running the state’s hazardous waste 

program involve staff salaries, in-state and out-of-state travel, and 
18

per diem reimbursements. In-state travel and per diem 

reimbursements are incurred as staff conduct hazardous waste 

inspections, compliance assistance, compliance follow-up 

investigations, and speaking engagements. Occasional out-ofstate travel is also a cost, enabling staff to attend training 

opportunities and regional/national meetings.

b. Sources and amounts of available funding

Funding for the hazardous waste program comes from two 

sources: through the federal Performance Partnership Grant and 

state general funds. The federal grant amount is 75 percent of the 

program’s total operating monies and the remaining 25 percent is 

state-funded (see table below). 

Federal Grant $ 275,901.00

State Match (general funds) $ 91,967.00

A third, but currently potential, source of funding is represented by 

permitting fees that would be assessed of any new or existing

facility for hazardous waste treatment or disposal. Currently, 

DENR has not collected hazardous waste permitting fees because

no treatment or disposal facilities exist in this state; nor have such 

applications been received. The fee schedule for permitted 

treatment and disposal facilities has been established in the state’s 

hazardous waste statutes (SDCL 34A-11-12.1; 34A-11-16.1; and 

34A-11-25).
19

SECTION V

STATE PROCEDURES, PERMITTING PROGRAM AND COORDINATION 

WITH OTHER AGENCIES AND PERMITTING 

(40 CFR 271.6(c) & (f))

A. Regulatory Development

In accordance with state statutes SDCL 34A-11-1.1 and 1-40-4.1, DENR cannot 

establish hazardous waste rules that are more stringent than the corresponding 

federal hazardous waste rules. Concomitantly, in accordance with RCRA

Subtitle C, Section 3009, no state may promulgate rules less stringent than those

authorized under Subtitle C (hazardous waste). As a result, the state adopts the 

federal hazardous waste rules by reference.

The federal government updates their hazardous waste rules on a continual 

basis during the year with publications in the Federal Register. They codify and 

bind final rules into printed volumes once each fiscal year. The hazardous waste 

rules revised as of July 1 each year through June 30 of the following year are 

placed into 40 CFR Parts 260 through 279. To maintain current state rules and 

the state’s authorization status, the program typically updates the state’s 

hazardous waste rules on an annual basis, reflecting updates made in the 40 

CFR. The process to update state rules, established by the state legislature, 

occurs as follows:

1. Draft rule preparation. State rule-making procedures require changes made 

to existing rules be reflected using strikeouts and inserts. New language is 

placed within the set of rules as inserts and strikeouts mark text deletions.

2. Permission to public notice. The program’s team leader appears before the 

BME to request permission to public notice the draft rules. 

3. Rules drafting and internal review. Upon BME approval, staff draft rules. A 

copy of the proposed rules and corresponding rule-making documents are 

submitted to DENR’s Secretary (hereinafter “Secretary”) for approval and 

signature. At this time, staff also provide EPA Region 8 authorization 

personnel with a copy of the draft rules.

4. LRC/BFM review. Draft rules and corresponding rule-making documents are 

submitted to the state’s Legislative Research Council and Bureau of Finance 

and Management for review, approval and signature.

5. Public notice. Upon receipt of signed and approved LRC and BFM 

documents, a public notice summarizing the rule changes is sent to at least 

four newspapers of general circulation within the state. Copies of the public 

notice are also provided to entities on the BME mailing list. That list consists 

of individuals and companies who have indicated their wish to receive 

information regarding actions addressed by the BME. Publication of the 

public notice occurs at least 45 days prior to the public hearing.
20

6. Public comment. During a minimum 20-day public comment period following 

publication of the public notice, program staff receive written and oral 

comments regarding the proposed rules.

7. Public hearing. A public hearing is held before the BME. During the public 

hearing the program’s team leader provides an overview of the proposed 

rules and answers any questions the audience and BME members have. 

The BME members then vote to approve or deny the rules. BME keeps 

minutes to document public input and the final vote. 

8. Rule approval. Upon approval, the appropriate rule-making documents are 

signed by the board chair and board members. These documents are 

provided to program staff to continue the rule-filing process.

9. Rules finalized. Program staff incorporate any changes as directed by the 

BME, and the rules are then finalized.

10.Final rules submitted to legislative rules committee. Copies of the final 

version of the proposed rules, copies of any written comments, minutes from 

the public hearing, and procedural rules-filing documents are sent to the 

Legislative Interim Rules Committee (LIRC), prior to a hearing by that

committee.

11.LIRC hearing. The program’s team leader appears before this committee to

provide an overview of the rules and the outcome of the public hearing. 

Program staff address any concerns or questions posed by the committee 

members.

12.Filing of final rules. Upon approval by the LIRC, and no earlier than ten days 

following the public hearing, the final version of the rules are filed with the 

Secretary of State.

13.Rules become effective. Rules are provisionally effective 20 days following 

filing with the Secretary of State. Rules are finally effective on July 1st of the 

next state fiscal year.

B. Notification

The state’s hazardous waste program utilizes EPA’s RCRA Subtitle C Site 

Identification Form, EPA Form 8700-12 (as revised November 2009). 

Notification forms are processed in the following manner:

1. Upon receipt of a notification form, staff review the document for 

completeness and presence of an original signature.

2. If additional information or clarifications are needed, staff contact the 

company to obtain that information. Should a document not contain an 

original signature, staff informs the company DENR cannot provide an ID 

number until receipt of a notification form bearing an original signature.

3. Staff review locational information to determine whether the notifying site has

a previously assigned ID number.

4. Utilizing identification numbers generated through the RCRAInfo system, 

DENR staff assign an ID number to that location.

5. Staff enter notification and ID information into RCRAInfo.

6. Staff prepare a verification memo documenting the generator’s site location, 

mailing address, and ID number along with a copy of the final signed 
21

notification form that now bears the company’s ID number.

7. DENR mails a verification memo and copy of the notification form with the 

assigned ID number to the generator.

8. Staff place the original signed notification document in DENR’s hazardous 

waste notification file. At the time of the writing of this PD, that file consists of 

multiple three-ringed binders organized alphabetically by company name. 

Program staff plan to scan these documents for electronic storage. Hard 

copy microfilms of the originals will be made to serve as the official backup 

file.

C. Manifest Tracking System

Manifests used by South Dakota’s generators, transporters, and TSD facilities 

are those required in ARSD 74:28:23:01, adopting by reference 40 CFR 262, 

Subpart B, ARSD 74:28:24:01, adopting by reference 40 CFR 263, Subpart B 

and ARSD 74:28:25:01, adopting by reference 40 CFR 264, Subpart E, 

respectively. Manifest use by interim status facilities is subject to the 

requirements in ARSD 74:28:28:01, adopting by reference 40 CFR 265, Subpart 

E. 

South Dakota does not require that generators, transporters, interim status, or 

TSD facilities submit manifest copies to the state’s hazardous waste program. 

Because some other states have that requirement, South Dakota often receives 

manifest documents. Upon receiving manifests, staff file them in the appropriate 

generator file. This information is reviewed when inspectors prepare preinspection reports to conduct hazardous waste inspections. If questions 

regarding the shipment arise from the manifest review, staff contact the 

generator to obtain clarification. The manifest information received is also used 

to identify new generators, including potential LQGs and SQGs that have not 

submitted required hazardous waste notification information.

D. Coordination of Information Regarding Interstate and International Shipments

Information provided to the state’s hazardous waste program from other states or

federal entities is incorporated into an appropriate state program file. When 

discussions occur between DENR and other state or federal entities regarding 

that information, the hazardous waste program’s team leader serves as the 

primary contact and participates in meeting. Similarly, when the state hazardous 

waste program contacts other state or federal entities regarding waste 

shipments, the hazardous waste program team leader serves as the primary 

contact. 

E. Permitting

One of the most comprehensive procedures conducted by the state’s hazardous 

waste program is permitting. Owners and operators of facilities subject to

permitting regulations are required to submit a permit application that covers all 

aspects of the design, operation, maintenance, and closure of that facility. 
22

Additionally, as part of the permit process they must also ensure corrective 

action is carried out should releases occur. All treatment, storage and disposal 

facilities go through the same basic permitting process, encompassing the 

following five steps:

1. Submittal of Part A and Part B permit applications;

2. Administrative review of the permit application;

3. Preparation of the draft permit;

4. Public notice, public comment, and finalizing the permit; and,

5. Modifying, maintaining, renewing and terminating a permit.

To date, the state has issued three hazardous waste storage permits: two to 

Ellsworth AFB and one to Safety-Kleen Systems. Ellsworth AFB terminated and 

clean-closed their permits in 1998 and 1999; currently only Safety-Kleen 

operates under a hazardous waste permit. Safety-Kleen’s initial permit was 

issued in 1991, with renewals in 1993, 1998, 2002, and 2007.

1. Permit application

South Dakota’s hazardous waste permitting responsibilities are held within 

the hazardous waste section of DENR’s Waste Management Program. In 

consideration of engineering and technical criteria associated with 

hazardous waste permits, these permit responsibilities are primarily 

assigned to senior hazardous waste staff with an engineering degree. 

Other program engineers and scientists assist with regulatory, procedural,

and chemical information reviews.

Typically, hazardous waste program staff hold numerous conversations 

with potential hazardous waste permittees before they submit an 

application. Pre-application dialogues typically include face-to-face 

meetings, telephone conversations, and email correspondence. Staff

personnel provide any guidance documents available to the applicant, 

including state and federal documents applicable to the type of permit 

sought. 

South Dakota utilizes the federal Part A Permit Application, and refers the 

permittee to the Part B requirements specified in ARSD 74:28:25:01,

adopting by reference 40 CFR 264; and ARSD 74:28:26:01, adopting by 

reference 40 CFR 270. Companies meeting the applicability requirements 

for permitting under the Standardized Permits for Storage and Treatment 

Units section are referred to the Part A permit application and ARSD 

74:28:25:01, adopting by reference 40 CFR 267, Subpart J.

2. Permit application review process

Upon receipt of a Part A and Part B permit application, staff personnel 

conduct a two-part review. The first part is a completeness review to 

determine whether the application contains all components that required 
23

by state rules and statutes (e.g., the Part A application, schematics, 

drawings, and the Part B application, including both general and specific 

facility requirements). The completeness review is conducted within 60 

days of receiving the permit application. 

The second part of the review process is a technical review where the 

staff engineer conducts a detailed review of the engineering plans and 

specifications and other information. The program’s scientists also review

related data and any chemical information. This technical review 

determines whether the information submitted is adequate to make a 

permit determination. In addition to the completeness and technical 

reviews, staff may conduct a site visit of the proposed facility and meet 

with company representatives. Such visits are made to ensure a high 

level of communication and facilitate staff’s understanding of information

submitted in the application. Staff provide EPA Region 8 permit 

counterparts a copy of the application in both a spirit of cooperation and in 

accordance with the state/EPA partnership effort.

3. Addressing permit application deficiencies

If staff determine a permit application is not complete, a letter, referred to 

as a Notice of Deficiency, is sent to the owner or operator. The Notice of 

Deficiency describes the information that must be submitted and cites 

applicable regulatory sections. A Notice of Deficiency letter can be sent 

after the completeness review, to address the need to include a set of 

required information; or following the technical review, to address both 

completeness and technical deficiencies. 

Once the applicant submits all information required, DENR informs the 

applicant in writing the permit application is considered complete. If, after 

receiving a Notice of Deficiency, an applicant fails to provide adequate 

information and subsequent negotiations fail to bring resolution, the 

Secretary can recommend denial of the application. The applicant is sent 

notice by mail of the facts or conduct that warrants DENR’s intent to deny 

the permit. The applicant can appeal DENR’s decision by bringing the 

case before the BME. The BME will hear the case and determine denial 

or acceptance of the application.

Once DENR receives a complete and technically adequate permit, the 

program’s senior engineer completes review of the application, including

engineering and regulatory aspects. Working with the engineer, the

program’s team leader also reviews the application, including biological, 

chemical, and regulatory aspects. Additional staff engineers and 

scientists participate in the review as needed. Following the 

completeness and technical reviews, program staff conduct a meeting to 

determine whether DENR recommends approval or denial of the permit to 

BME. 
24

If DENR recommends denial of the permit, the applicant is sent notice of 

that decision by mail, including the reasons for DENR’s intent to 

recommend denial. As noted previously, the applicant can appeal 

DENR’s decision by bringing the case before the BME, and the board will 

hear the case and determine denial or acceptance of the application. If 

DENR recommends approval of the permit, staff begin preparation of a 

draft permit (see below).

4. Draft permit and public notice

When DENR recommends approval of a permit application, hazardous 

waste program staff prepare a draft permit. Upon completion of the draft 

permit DENR staff prepare a public notice to be published in pertinent 

newspapers in the state. This public notice is also mailed to companies 

and individuals on the BME’s mailing list and a facility-specific mailing list 

incorporated into the permit application. A minimum of 45 days following 

publication is allowed to receive written comments from the public (see 

below).

5. Public participation and permit issuance

As indicated above, the public is provided a minimum of 45 days to review 

and provide written comments on a draft permit. Program staff review 

written comments received within the 45 days, and revise the permit as 

needed to incorporate pertinent comments. 

If merited, the final decision to issue a permit may be brought before the 

BME, especially if an issue results in substantial public comment or 

controversy. Individuals who have prepared comments may present 

testimony in person before the BME at that hearing. After hearing public 

comment, the BME votes to determine whether DENR needs to revise the 

draft permit before final issuance, whether the permit can be approved as 

is, or whether the permit should be denied. BME keeps minutes to

document public input and the final vote.

Following the comment period, or the public hearing in the case of a BME

hearing, program staff revise the permit if necessary and DENR issues a 

final permit to the applicant, if approved. As indicated earlier, an initial 

permit remains in effect for two years from the date of issuance.

6. Permit modification, renewal, revocation and reissuance, and termination

Permits may be modified, revoked and reissued, or terminated either at 

the request of any interested person, or upon DENR’s initiative. Review of

information received from the permittee, the general public, department 

inspections, or from other sources can result in a determination by DENR 

that a permit needs modification or other action. Permit modifications

submitted to DENR by the permittee are reviewed by the lead staff person 
25

assigned to oversee the facility (typically the permit writer). Upon review 

of the modification request, staff determine whether the changes 

represent a Class I, II, or III modification. The three modification types are 

described in ARSD 74:28:26:01, adopting by reference 40 CFR 270.42 

Appendix I. Class I modifications represent minor changes to a permit 

that keep it current with routine changes to the facility or its operation. 

These changes do not substantially alter existing permit conditions or 

change the capacity of the facility. Class I modifications can include

correcting typographical errors; updating facility contacts; and increasing 

the frequency of monitoring, reporting sampling or maintenance. Class II 

and III modifications represent more substantial changes proposed for the 

facility. Class II permit modifications represent changes necessary to 

enable a permittee to respond, in a timely manner, to common variations 

in the types and quantities of wastes managed on-site; technological 

advancements; and where certain changes are necessary to comply with 

new regulations as long as these changes can be implemented without 

substantially changing design specifications or management practices. 

Examples of Class II modifications include changes in frequency or 

content of inspection schedules; changes in the number, location, depth,

or design of groundwater monitoring wells; and increases in waste storage 

capacity. Examples of Class III modifications include storing different 

wastes in containers; requiring different management practices than 

currently authorized in the permit; and changing indicator parameters, 

hazardous constituents or concentration limits in groundwater protection 

standards.

While Class I modifications require the permittee to notify DENR prior to 

or within seven days after implementing the change, and sending a notice 

of the modification to all entities on the facility’s mailing list, no other public

notice is required. Class II and III modifications require the permittee to 

notify DENR; send a notice to all entities on the facility mailing list; ensure 

a copy of the permit modification request and any supporting documents 

are made available and readily accessible to the public; provide a 60-day 

public comment period by publishing the notice in the local newspaper; 

and conduct a public meeting prior to the close of the 60-day comment 

period. Class II and III modifications can only be initiated once the 

comment period has occurred and the modification allowed. 

Permit modifications initiated by DENR can be requested under specific 

circumstances. These circumstances include: when material and 

substantial alternations or additions have been made to the facility after 

the permit was issued; when DENR has received information that was not 

available at the time the permit was issued, but would have required 

different permit conditions; when new statutory or regulatory changes 

necessitate changes be made in the permit; and when circumstances 

such as acts of God, strikes, floods, material shortages, or other events 

not under the control of the permittee occur that require a change in 

compliance schedules.
26

An owner/operator of a permitted facility must submit an application for 

permit renewal to DENR in a timely manner (180 days prior to expiration 

of the current permit as required by ARSD 74:28:26:01, adopting by 

reference 40 CFR 270.10). Should DENR not act on a renewal 

application for an existing hazardous waste permit before the current 

permit expires, and the applicant has submitted timely and sufficient 

application, in accordance with SDCL 1-26-28 the current permit does not 

expire until DENR makes a final determination.

Permit revocations may occur if DENR receives information or a written 

request to revoke and reissue a permit. Revocation and reissuance of a 

permit can occur only under certain circumstances, including: 

termination, followed by modification or revocation and reissuance; a 

proposed permit transfer is requested; or the permittee intends to be 

covered by a standardized permit. These causes are specified in the 

state’s hazardous waste rules (see ARSD 74:28:26:01, adopting by 

reference 40 CFR 270.41).

7. Interaction with enforcement personnel

Because of the state’s small staff size, personnel responsible for 

conducting hazardous waste generator inspections also conduct 

hazardous waste permitting activities. As indicated earlier in this 

document, staff engineers take the lead on permits to ensure plans and 

specifications submitted by the applicant meet both regulatory 

requirements and technical specifications. Staff scientists work with the 

engineers to ensure other aspects of the permit process are met and to 

assist with public participation and board meeting requirements as 

needed. In addition, all permit-related accomplishments must be relayed 

to the staff member responsible for RCRAInfo data input. The 

coordination and communication among staff is accomplished through 

daily interactions, periodic staff meetings as well as electronic and hard 

copy sharing of information. 

8. Routine review of facility operation

Each year, DENR receives financial assurance updates for a permittee’s 

closure/post-closure costs and liability insurance. Upon receipt of the 

update, the lead engineer reviews the instrument and associated 

information, including the instrument value, to determine compliance with 

requirements for the instrument’s language and whether the value 

assigned is sufficient. This review requires staff to determine the annual 

inflation rate and, using a specified formula, calculate the required value 

for the financial instrument provided. If the value of the financial 

instrument provided by the permittee is less than the required value for 

financial assurance calculated by program staff, DENR sends the 

permittee correspondence indicating they must provide additional funds 

adequate to meet the financial assurance requirement. If the value of the 
27

submitted financial instrument is equal to, or exceeds, the required value,

the instrument is sufficient and staff send correspondence to that effect to 

the permittee. All financial instruments are maintained in a locked safe 

within the Waste Management Program offices in Pierre. 

In addition to reviewing financial assurance documents, staff conduct 

annual on-site inspections of each permitted facility. The on-site 

inspection is performed to determine whether the facility is operating in 

compliance with its permit, and if any physical operations or procedural 

activities have changed. As noted previously, facility changes or 

operational issues identified from inspections can result in DENR

performing one of three actions: modification of permit conditions; 

revocation and reissuing the permit; or termination of the permit. 

Procedures for carrying out these actions have been described earlier in 

this document.

9. Reports and information required by the state

All TSD facilities in South Dakota are required to submit, at a minimum, a 

hazardous waste biennial report. This report, due March 1 of each even 

numbered year, details the types and amounts of hazardous waste 

managed during the previous odd-numbered year. Should circumstances 

occur requiring the facility notify DENR of an unmanifested waste, they 

must submit a written report within 15 days of receiving the waste. In

addition to the biennial and unmanifested waste reports, permit conditions 

may require a facility to submit additional reports, including progress 

reports, notice of non-compliance reports, and monitoring reports. The 

frequency at which the permittee must submit the reports is specified in 

the facility’s permit conditions.

10. Other types of permits

South Dakota’s hazardous waste program has the capability to issue 

permits for the treatment, storage, and disposal of hazardous waste as 

well as special forms of permits. Special forms of permits include the 

following: permits by rule, emergency permits, research development and 

demonstration permits, standardized permits and remedial action plans. 

11. Joint permitting

Joint permitting with EPA Region 8 may be conducted due to a change in

regulations and the lag-time inherent in the state’s rule adoption process. 

EPA retains its responsibility to ensure “full and faithful” execution of 

RCRA/HSWA, including direct implementation in the event the state is 

unable to take action. EPA will enforce regulations and issue permits 

promulgated under HSWA if the state has not yet adopted the federal 

requirements. In such instances, frequent communication between the 

state and EPA will be conducted in order to ensure a smooth process. 
28

Most communication will be conducted over the phone and through 

electronic exchange of documents; however, face-to-face meetings may 

need to be conducted at some point during the process.

F. Interim Status

Existing operations that become treatment, storage, or disposal facilities due to 

statutory or regulatory change must submit a Part A application as soon as they 

become subject to the new requirements. These facilities are considered interim 

status facilities. The Part B application for these facilities can be voluntarily 

submitted by the applicant or called in by DENR. However, the state must 

receive or call-in the Part B application within 12 months after receiving the Part 

A application. After receiving the Part B application from an interim status 

facility DENR will conduct the same review of the applicant’s Part A/Part B permit 

application as described for new facilities earlier in this document.

G. Biennial Reports

South Dakota requires every LQG and each permitted treatment, storage, and 

disposal facility in the state to submit a hazardous waste biennial report. These 

reports are due by March 1 of every even-numbered year to reflect hazardous 

waste activities conducted during the previous odd-numbered year. Presently, 

DENR offers generators and TSD facilities two options for submitting biennial 

report information. Businesses may choose to complete the forms found in 

EPA’s 8700-13 Hazardous Waste Report instructions and forms booklet, or 

download and complete software offered free from the state of Florida at: 

http://www.dep.state.fl.us/waste/categories/hazardous/pages/BRS_data.htm

Upon receipt of the information, the state’s lead staff person for hazardous waste 

biennial reports reviews the information submitted for errors or omissions. After 

initial review, staff transfer the data into the state of Florida’s reporting software 

and run two programmed data checks. The first check is a fairly simple one with 

the second being more thorough. Once the data passes both edit checks, staff 

download the data into a flat file and electronically transferred to EPA’s national 

biennial reporting system. EPA Headquarter’s staff perform additional data 

verification and submit a draft report to DENR of the data submitted by South 

Dakota. Upon approval of the data submitted by each state, EPA publishes the 

final national biennial report.

H. General Inspections and Enforcement Actions

Inspections of hazardous waste generators represent the largest portion of work 

conducted by state hazardous waste program staff. They also represent the 

base from which most other activities grow. Currently, DENR commits to EPA to

conduct a total of 75 generator inspections each federal fiscal year. These 

inspections include a minimum of five LQG operations, one TSD facility, and at

least 69 SQG and CESQG operations. One TSDF inspection represents 100 

percent of the state’s current TSDF universe. Based upon 2009 LQG 
29

information the state had 24 companies that generated more than 2,200 pounds 

during at least one calendar month that year. The remaining 69 inspections will 

occur at SQG and CESQG operations, as determined by priorities and criteria 

explained below.

The program’s inspection schedule is based upon a number of factors including 

inspection frequency for individual generators, complaint information, as well as

DENR and EPA sector initiatives. By November 15 of each year DENR submits

a list of proposed inspections to the EPA Region 8 enforcement oversight officer

for South Dakota. Although DENR prepares this list based on the above criteria, 

we acknowledge that the actual inspections conducted over a year can change

because of complaints received, unexpected issues that may arise from a state 

or federal standpoint, and actions that require an above-average amount of staff 

time.

DENR hazardous waste inspections begin with a thorough review of file and 

database information. The inspector reviews information currently on file 

regarding the generator, and summarizes information relevant to the upcoming 

inspection in a brief pre-inspection report (see Section VIII.5). Staff pay 

particular attention to the most recent biennial report (if applicable), hazardous 

waste notification form(s), previous inspection reports, recent generator 

correspondence, state hazardous waste database, and RCRAInfo database 

information to identify potential wastes and possible compliance issues. In some 

cases, staff attach additional information to the pre-inspection report if applicable 

to issues that need to be addressed while on-site. The inspector contacts the 

company representative to arrange the inspection and obtain any additional 

information, such as operational changes, that might not be contained in current 

files. This call is typically made about one week prior to the intended inspection 

date, and is made to ensure the appropriate company personnel will be present 

for the inspection. 

Program staff present their DENR credentials to company personnel upon 

arrival. Staff then conduct the inspection to determine the generator’s 

compliance with the state’s hazardous waste rules. Company representatives

and the inspector typically begin by discussing current processes, products used, 

and the types and amounts of wastes generated. The inspector asks questions 

of the company representatives and documents their replies by writing within a

bound notebook. The inspector typically reviews waste-related documents 

during the inspection that include manifests, land disposal forms, test results, 

product data sheets, emergency response procedures, and personnel training. 

Information regarding these records are also recorded in the notebook. The 

inspector may request document copies for additional review or to attach to the

inspection report. Following the document review, company personnel and the 

inspector typically observe the relevant on-site operational areas determined by 

the inspector. The site tour is an important part of the inspection, providing the 

inspector the opportunity to observe and document the processes and products 

used as well as verify the waste types and quantities generated. The inspector 

examines waste generation and storage areas, waste containers and tanks,
30

posted emergency response information, the availability of communication

devices, as well as safety and emergency response equipment. At the 

conclusion of the inspection company representatives and the inspector review 

the inspection information. At that time, the inspector summarizes any 

information the company still needs to provide, reviews suggestions, concerns,

or highlights noted during the inspection, and addresses any additional questions 

either party might have. The inspector then prepares a Notice of Inspection form

(see Section VIII.6), documenting items that require follow-up by either party. 

Both the company representative and inspector sign that notice, and the 

inspector leaves the original copy with the company representative.

Upon return to the DENR office, the inspector completes a Compliance 

Evaluation Inspection (CEI) form (see Section VIII.7). Used for data 

management, this form includes the hazardous waste identification number, if 

one has been assigned, company name, company address, inspection date, and 

inspection type. The inspector submits the completed CEI form to the program’s 

RCRAInfo data lead for input into the RCRAInfo Compliance Monitoring and 

Evaluation (CM&E) module. When the generator does not already have an 

assigned hazardous waste ID number, the data lead assigns an identification

number during the RCRAInfo data input, flagging that information as an 

“implementer record”. In the RCRAInfo system, this signifies the information 

was obtained by staff personnel rather than submitted by the company using a 

hazardous waste notification form. 

Over the next 30 days, the inspector compiles the inspection information into a

written inspection report (see Section VIII.8). The inspector initially compiles 

written notes and information from documents provided by the company into a

draft report that documents the processes used, wastes generated, generator

status, waste minimization, compliance assessment, and a summary of findings. 

The inspector may also attach to the draft report, relevant documents obtained 

from the inspection that document information included in the report. Upon 

completion, the inspector submits the draft report to the program’s team leader 

for review. After review, the inspector gathers any additional information needed 

to complete the report and incorporates any necessary text revisions to finalize 

the report for filing. Once final, the inspector signs the report, including the date 

finalized. If requested by the generator, the inspector provides a copy of the final 

report to the generator. DENR files the original report in the appropriate 

hazardous waste file under the generator’s name. When the inspection was an 

EPA oversight inspection, DENR submits a copy of the report to EPA Region 8.

The compliance evaluation section of each inspection report details the factual 

basis for any violations identified from an inspection. An example of a violation 

detailed in a report’s compliance evaluation section follows: 

Waste Storage: Acetone is used to flush paint lines within the company’s 

paint booth. Once placed within a mostly empty paint gun canister, the 

painter sprays the acetone/paint material into a 55-gallon capacity waste 

storage drum. At the time of the inspection, three 55-gallon drums were in 
31

the company’s waste storage area. Two of the three containers were full and 

both containers were marked with the words “hazardous waste” and 

accumulation dates. The third container, approximately half-full at the time 

of the inspection, was not marked with the words “hazardous waste” and an 

accumulation date. 

The inspector initially brings violations identified during the on-site portion of the 

inspection to the attention of the generator at that time. Violations identified 

during subsequent report preparation are communicated to the generator in a 

written notice. In these cases, the inspector also typically contacts the generator 

by phone to confirm the information indicating a violation.

DENR addresses the violations identified from inspections in a manner 

consistent with the nature and scope of the violation. Upon completing the 

inspection report, the inspector will discuss violations with the hazardous waste 

team leader. If necessary, the Waste Management Program administrator will 

also participate to determine the appropriate level of enforcement. 

For low-level violations, DENR typically issues an informal notice, referred to as 

a Warning Letter, to the generator. Low-level violations typically consist of one 

to two minor violations, such as failing to mark waste containers, that do not 

result in or have a low potential to cause substantial releases to the environment. 

In addition to stating the generator’s waste generation status and the violations 

noted, the Warning Letter designates specific actions the generator must take to 

comply with the rules; it provides a timeframe in which the generator can rectify 

the violations without additional DENR action, and details information the 

generator must submit to DENR to document their return to compliance. When 

the program issues a Warning Letter, staff input pertinent information regarding 

the enforcement action into RCRAInfo’s Compliance Monitoring and 

Enforcement module. Warning Letters are designated in RCRAInfo by using the 

code 120 – Informal Action, for data purposes. 

For more significant violations DENR undertakes formal enforcement actions. 

DENR takes formal enforcement action when staff determine the number and/or 

type of violations identified from the inspection require additional redress, such 

as when violations resulted in significant releases to the environment or 

economic benefit to the generator. DENR may also take formal enforcement 

when inspections identify the company has repeatedly violated even minor rules

or failed to correct violations identified during previous inspections. Formal 

enforcement actions involve issuing two documents: a Notice of Violation and 

Order; and a Settlement and Compliance Agreement. The Notice of Violation 

and Order (referred to as an NOV) specifies the violations found, actions the 

generator must take to return to compliance, and timeframe in which the 

generator must rectify the violations and provide verification to DENR. The 

Settlement and Compliance Agreement represents an offer by DENR to settle all 

administrative claims against the generator by the generator’s payment of a 

monetary penalty. The hazardous waste team leader calculates the penalty 

amount using DENR’s multi-media penalty policy (see Section VIII.9) in 
32

conjunction with facts contained in the final inspection report. Staff document all 

formal civil enforcement actions with penalties in RCRAInfo by designating a 500 

or 600 series code during data entry.

In cases where the company fails to meet the criteria specified in the NOV 

and/or fails to agree to, or pay, the monetary penalty in accordance with the 

proffered Settlement and Compliance Agreement, DENR may refer the case to 

the state’s Attorney General. Because the Attorney General’s staff review each 

NOV and Settlement and Compliance Agreement during the preparation of those 

documents, they are already familiar with any cases referred to them. DENR 

refers any violations that are criminal directly to the Attorney General’s office for 

appropriate action. 

Training of new inspectors begins immediately upon hire. In addition to state 

employee information provided by the Bureau of Personnel, the program’s team 

leader provides individual training covering the state’s hazardous waste rules, 

the program’s filing procedures, and data management as well as discussions of 

our program’s responsibilities to, and working with, EPA. Within two to three 

weeks of hiring, the new inspector begins assisting with preparations for 

upcoming routine hazardous waste inspections and subsequently accompanies 

the team leader on those inspections. After the on-site inspection trip, the new 

staff person participates in drafting the inspection report. As time allows, new 

staff also complete EPA’s Basic Inspector course, an on-line course, to help 

build their knowledge of procedures important for conducting inspections. This 

course is followed at some point during the employee’s first year by taking the 

RCRA Inspector course, currently available either on-line or by reviewing a 

printed manual. For a period of time, as determined by the program team leader 

and dependent on the individual employees’ assimilation of regulations and 

procedures, new employees continue to accompany experienced hazardous 

waste inspectors on additional inspections until judged ready to conduct 

inspections on their own. 

I. Groundwater Monitoring Inspections

Groundwater monitoring inspections are conducted at permitted hazardous 

waste facilities that are undergoing Corrective Action activities, or at generator 

sites subject to an enforcement action that has required them to secure a permit 

to conduct Corrective Action. Groundwater information submitted to the 

department, in accordance with a facility’s permit, is reviewed by the Waste 

Management Program’s hydrologist. Currently, no hazardous waste 

groundwater monitoring activities are being conducted within the state.

J. Waste Minimization and Pollution Prevention

Waste minimization and pollution prevention activities are integrated throughout 

the state’s hazardous waste program. The program has developed specific tools 

and information resources for use by program staff, the regulated community, 

and the general public. Staff provide information frequently in response to 
33

questions received through phone calls and email inquiries. The greatest 

impacts for waste minimization and pollution prevention occur through on-site 

inspections, where inspectors identify specific opportunities and discuss options 

with company representatives. Information provided to generators may include 

links to various EPA or DENR web pages, local recycling options, and vendor 

listings. Each hazardous waste inspection report summarizes waste 

minimization information obtained during the inspection and documents specific 

details for on- and off-site recycling, product substitutions, and waste elimination

efforts.

In addition to these efforts, Waste Management staff also conduct activities that 

fall under EPA’s Resource Conservation Challenge. These efforts primarily 

involve solid waste recycling, industrial materials recycling, and beneficial reuse,

as well as electronic waste management and priority chemical reduction efforts.

K. Availability of Information 

In accordance with SDCL 1-26-2, DENR provides for the availability of 

information for all rules, final orders, decisions, opinions, and intra-agency 

memoranda, together with written statements of policy or interpretations 

formulated, adopted, or used by the agency. This statute also provides for the 

confidentiality of certain materials. In addition, SDCL Chapter 1-27 describes 

public records that must be made available to the public and addresses the 

confidentiality of certain records and information. Within the state’s hazardous 

waste statutes, SDCL 34A-11-22 specifically addresses the availability of 

information and certain confidentiality provisions for information deemed trade 

secrets. Specific requirements are discussed in additional detail under the 

Memorandum of Agreement, the Attorney General’s Statement, and the 3006(f) 

checklist that have been submitted previously. South Dakota received 

authorization for the 3006(f)–Availability of Information provision in November 

1993.

The public may request information from the program via email, telephone, or 

letter. If the information needed is extensive, requires additional input from other 

programs, or requires a detailed review and/or explanation, staff ask that the 

requestor submit the request in writing so DENR can respond appropriately. In 

accordance with SDCL 1-40-31, DENR must respond to all written requests for 

information within twenty working days of receiving the request. If DENR denies 

a request or fails to respond to a request within twenty days, it is considered a 

final agency action. However, that final action may be appealed to circuit court. 

Any records reproduced for the public may be subject to fees in order to 

reasonably cover the cost of reproduction. Fee waivers are available for public 

record requests from the press or communications media, public interest groups, 

educational organizations, and governmental institutions. 
34

In accordance with provisions under SDCL 1-26-2 and 34A-11-22, certain 

information may be deemed confidential. Confidential information cannot be 

disclosed to the public in response to requests for information, and those statues 

stipulate penalties for persons that improperly disclose confidential information. 

Confidential information may only be disclosed to other officers, employees, or 

authorized representatives of the state or federal government (SDCL 34A-11-

22). 

L. Appeals

As indicated earlier in this document (Sections V.E and V.A), hazardous waste 

permitting and rule-making procedures are subject to public comment. In the 

case of a permit issuance, the applicant or the public can appeal issuance of a 

permit to the BME. In those cases, staff prepare and publish a Notice of Hearing

and bring the contested case before the BME. In accordance with SDCL 1-26-

18, the BME hearing allows all parties to present evidence on issues of fact, and 

argument on issues of law or policy. If the amount in controversy exceeds

$2,500 or if a property right may be terminated, any party to the contested case 

may require that DENR use the Office of Hearing Examiners. A person who has 

exhausted all administrative remedies available within any agency, or a party 

who is aggrieved by a final decision in a contested case, is entitled to judicial 

review. If DENR fails to make and file a decision within 30 days after a matter

has been finally submitted, or if an extension is given but the agency fails to file a 

decision within the agreed extension, then any a person authorized to appeal 

from the record may do so (SDCL 1-26-30.1). Appeals may be brought to circuit 

court by any party in a contested case from a final decision, ruling, or action of 

an agency (see SDCL 1-26-30.2). 
35

SECTION VI

COMPLIANCE TRACKING AND ENFORCEMENT

(40 CFR 271.6(e))

A. Identification of Members of the Regulated Community

1. Identification of revisions that have the potential to significantly increase

the size of the RCRA universe

Since approval of the latest state PD in 1995, DENR has updated rules on 

a regular basis to adopt rules promulgated by EPA. These regulatory 

updates, overall, have not resulted in significant changes to the types of 

operations subject to the state’s hazardous waste regulations. However, 

with an overall growth of industry in the state, DENR has seen a 

proportional increase in the number of hazardous waste generators. At 

the time of this writing, South Dakota has 24 LQGs, 633 SQGs and 990 

CESQGs. In addition, there are currently two companies who transport 

hazardous waste and one permitted commercial hazardous waste storage 

facility operating in the state. 

2. Strategies and methods for identifying members of the regulated community

DENR uses a variety of resources to identify new or previously 

unidentified members of the regulated community. These sources are 

described below:

a. Sister state programs and local governmental agencies -

Colleagues in other DENR programs and state agencies often 

consult with program staff regarding various operations or issues. 

These programs most often include DENR’s Air Quality, Ground 

Water and Surface Water Quality Programs. However, the 

Department of Game, Fish, and Parks, Department of Public 

Safety, Governor’s Office of Economic Development, or other state 

agencies sometimes contact staff. Information sharing occurs with 

these colleagues, typically including the types of processes and 

operations conducted at a given location and whether the 

hazardous waste program has additional information regarding 

those operations. In some cases, the hazardous waste program 

may have no record of the operation. When merited, based on 

information obtained, DENR places these businesses or locations 

on a list of potential inspections.

Because regular communication occurs between hazardous waste 

staff and local governmental agencies, DENR often learns of new 

generators through local officials. The local officials most often
36

worked with include wastewater, industrial wastewater pretreatment, and solid waste facility operators; on occasion local 

code enforcement, county sheriff, city police, and finance officers

are also consulted.

b. Inspections and enforcement actions – Staff conducting routine 

inspections often obtain information from the generator regarding 

similar operations within the area or state. This can happen on an 

informal basis or a more formal basis through conversations with 

generator personnel during inspections or complaints received 

regarding operations at other locations.

c. South Dakota Manufacturers Register – As part of preparing the 

program’s list of potential inspections at the beginning of each 

fiscal year, staff review the South Dakota Manufacturers Register 

and incorporate operations into the inspection list that have the 

potential to generate hazardous waste but are not included in the 

program’s files.

d. Public appearances and presentations - Major industry 

organizations, trade groups, and some educational institutions 

typically maintain communication with staff personnel or ask staff to 

present hazardous waste information to a variety of groups and 

venues. In addition to increasing knowledge among the regulated 

community, these presentations offer staff opportunities to learn 

about new or unidentified generators.

e. Publications and newspaper articles – Representatives of 

businesses new to an area are often interviewed by local news 

reporters. DENR’s staff attorney receives electronic news releases 

pertaining to DENR-related issues published on-line and forwards 

that information to appropriate staff within each program.

f. BME mailing list – This mailing list is composed of companies, 

trade associations, and interested parties who have requested they 

receive all notices for issues brought before the BME. These 

individuals and organizations not only are informed of any rules 

updates the BME will be hearing, but it also gives them the 

opportunity to comment. This is one avenue whereby DENR keeps 

companies appraised regarding new hazardous waste regulations. 

This method of notice also gives entities a heads-up should they 

become a newly regulated operation, giving them the opportunity to 

contact us with questions. 

g. Yellow Pages and electronic business searches – Staff review 

telephone book yellow page listings and electronic search engines 

to identify potential generators who may not have notified of 

hazardous waste activity. These sites are added to the program’s 
37

list of prospective inspections.

B. Inspections and Analysis Workload

1. Work adjustments for new program activities

As indicated earlier in this document, the state currently conducts a 

minimum of 75 Compliance Evaluation Inspections each federal fiscal 

year. These inspections primarily consist of LQG, SQG, and CESQG

operations. However, staff also inspect hazardous waste transporters, 

permitted hazardous waste storage facilities, and used oil transfer 

facilities. New regulations promulgated by EPA to this point will be 

implemented by DENR and absorbed into the regular workload. At the 

time of the writing of this PD, EPA has promulgated the new Definition of 

Solid Waste rules, which the state has not yet adopted. A learning curve 

is anticipated to ensure staff are familiar with and can implement the rule 

in an appropriate manner.

The greatest change in the program’s workload would occur should DENR 

receive an application for a new hazardous waste facility. The need to

permit a new hazardous waste facility would require a significant

adjustment in staff duties. The program’s senior engineer would be 

tasked with the primary permitting responsibilities, and the program’s team

leader would work with the senior engineer to assist. The program’s junior 

engineer would be tasked with taking the lead on the existing permitted 

facility. In this way the junior engineer can tap the experience of the 

senior engineer and team leader, who have both worked with the current 

facility for years. Should enforcement actions need to be taken, the 

program’s team leader would still take the lead, but the lead inspector 

would need to participate to a greater extent in order to see the action 

through. The program’s environmental project scientist would not only 

assist with review and research aspects of the permit, but would be the 

primary staff person conducting inspections.

2. Inspection, sampling, and analysis adjustments for new program activities

Any new permits will result in a need for the program to adjust work 

assignments among existing staff to ensure the program continues to 

meet our obligations to EPA. Inspections of any newly permitted facility, 

along with the review of financial assurance documents and permit 

modifications, would be conducted by the senior engineer, whom we 

anticipate would also be the individual who took the lead in permitting the 

facility. Sampling inspections may be conducted using two inspectors, if 

appropriate. Test analysis reviews, reports, and follow-up duties at a 

newly permitted facility will also be the responsibility of the senior 

engineer. Other hazardous waste staff would increase their inspection 

responsibilities and other duties necessary to the program as discussed 

previously. 
38

3. Impact on compliance monitoring of existing program

With additional duties, the program anticipates use of current staffing 

levels with the option of hiring third party companies to assist with any 

sampling and analysis needs. Additional assistance could be requested 

of EPA Region 8 staff for technical reviews and certain expertise, such as 

statistical analyses of groundwater data. Permitting fees received from 

regulated facilities would be used for inspection and monitoring purposes.

In order to efficiently and effectively carry out existing and new duties, 

additional training would be conducted. Training opportunities will be 

maximized if training can be obtained within the state. Such options are 

more available now because of the increased availability of resources 

through on-line webinars and disk-based training courses that staff can 

implement as time allows. Off-site training that is outside of the state 

would be used as necessary. 

C. Data Management

The addition of new activities would require that the program document those 

activities in conjunction with the activities already documented and tracked using

the program’s existing filing and database systems. This may require some 

minimal training of administrative personnel to ensure information is properly 

maintained. Additionally, staff must record certain activities in the RCRAInfo

database system. Hazardous waste-related activities including generator 

notifications, implementer records, inspections, enforcement actions, permitting, 

corrective action, and financial assurance are all recorded using RCRAInfo

modules. Program staff will need to ensure RCRAInfo documentation forms are 

completed accurately and provided in a timely manner to the program’s 

designated RCRAInfo Implementer of Records (IOR). The IOR must be familiar

with the appropriate RCRAInfo modules to ensure the data are fully recorded. 

Familiarization with those modules primarily takes place through use, but 

additional assistance will be gained by working with the program team leader, 

EPA Region 8 staff, and other state IORs, as well as by attending training 

sessions available through EPA Region 8 and RCRAInfo National Conferences. 

D. Compliance Monitoring Resources

1. Resource adjustments for new program activities

a. Increased technical expertise

The background and expertise of program staff currently in place 

provides a broad base of knowledge and ability. New program 

activities would be met using the current staff. DENR typically has 

adequate resources available to program staff to bridge any 

knowledge gaps encountered. Specific expertise in areas DENR
39

cannot meet would be obtained through requests to EPA Regional 

and Headquarters personnel, or contracting with third party 

contractors.

b. Additional laboratory support

Currently, the program has the ability to use resources available 

through the state Health Lab. On occasion, the program has 

obtained assistance from state university laboratories and teaching 

staff. However, because these resources are limited (the state labs

do not perform hazardous waste analyses using TCLP methods), 

the program uses outside laboratories to meet hazardous waste 

testing needs. 

2. Resources available for new program responsibilities

a. Plans for training staff

DENR anticipates the greatest need with respect to training 

program staff to handle new hazardous waste responsibilities will 

involve nuances with new EPA regulations that could become 

effective in the state, as well as some permitting/corrective action 

information. In addition to reviewing proposed and new regulations 

EPA publishes in the Federal Register and CFR, staff would obtain 

training on new regulatory requirements through EPA documents 

such as fact sheets, rule preamble language and correspondence 

with other regulators throughout the region and country. 

Program staff will obtain permitting and corrective action training 

through studying documents published by EPA, participating in 

EPA-sponsored permitting and corrective action conference calls 

and workgroups, and corresponding with experienced EPA Region

8 and Region 8 states personnel. Out-of-state training 

opportunities, generally those offered to state programs by EPA,

will be used when they are available and funding resources allow.

b. Plans for hiring additional staff

Should vacancies occur, or if spending authority allows, additional 

staff hired would need to have backgrounds in the fields of the

natural sciences, engineering, and/or hydrology. DENR conducts 

the hiring of additional staff using procedures established by the 

state Bureau of Personnel. That process begins with obtaining 

approval from DENR management. Upon approval, the waste 

management program administrator and hazardous waste program 

team leader, in conjunction with state Bureau of Personnel staff, 

prepare a position announcement. That announcement is

published in the state’s job bulletin, DENR’s website as well as 
40

newspapers within and outside of the state. From the applications 

received, the Bureau of Personnel selects candidates who meet 

the minimum job requirements; these applications are then 

forwarded to the program. The program administrator and team 

leader then select about ten individuals who appear most suited for 

the position. DENR sends letters to those applicants asking them 

to contact us to arrange an interview. Depending on the number of 

applicants and each applicant’s location, the program administrator

and team leader conducts one or more phone and face-to-face 

interviews with individual applicants. The program administrator, 

team leader and department managers select the top two 

candidates. They offer the position to the top applicant, agreeing 

upon a hiring date and payment rate if accepted. Should the top 

applicant decline the offer, DENR considers offering the position to 

the next applicant, if appropriate. 

c. Agreements with other state agencies

Cooperation with other state agencies is a valued resource. 

Although DENR does not have written agreements in place

currently, program staff routinely cooperate with colleagues in other 

state agencies. Those efforts will be reinforced in order to continue 

our work or should additional duties develop. Particularly important 

is communication with the state Highway Patrol when hazardous 

materials and hazardous waste transportation incidents occur. 

These incidents also require staff communication with local 

regulatory and enforcement agencies as well as DENR’s Ground 

Water Quality and Surface Water Quality programs. The state

Department of Health is an important partner when dealing with 

health care facilities and the proper management of 

pharmaceuticals. The state Department of Education is also a 

colleague when staff work with K-12 schools regarding the cleanout 

of school lab chemicals. 

d. State plans to use contractor assistance

As indicated earlier in this document, the program primarily uses 

contractor assistance in cases requiring substantial sampling and 

laboratory analysis. Because DENR maintains a contractual 

agreement with a consultant and laboratory through the state’s 

bidding and awards process, the program would use these 

businesses if the need arose. Staff would provide the consultant

with an outline of project needs and outputs, including specific 

product tasks and time frames. A staff member serving as the 

project lead would be the main contact for the consultant, and that

project lead would be responsible for ensuring the consultant met 

project deliverables and time frames.
41

E. Enforcement Process

1. Enforcement procedures 

DENR’s overall enforcement strategy is based upon the following objectives:

A. Remove immediate threats to human health and the environment;

B. Identify and remove other pollution problems as soon as possible;

C. Ensure proper corrective or clean-up actions are taken;

D. Ensure compliance with state statutes and regulations;

E. Prevent violations from reoccurring; and,

F. Obtain penalties for repeat violators or major first-time violations.

In accordance with these objectives, DENR attempts to handle all minor 

violations through the use of a Warning Letter to the violator. If the 

problem is not corrected through use of the Warning Letter within the 

timeframe specified, a Notice of Violation and Order is issued by the 

Secretary. Should the violations specified in the Notice of Violation fail to 

be corrected, the issue is referred to the state’s Attorney General’s Office. 

During the process of preparing a Notice of Violation and Order by the 

program, the formal action is provided to the Attorney General’s Office for 

review. As a result, should the matter need to be elevated to the Attorney 

General’s Office, the issue will not be unfamiliar to them.

In instances in which violations are particularly egregious, or represent 

repeated violations, the program’s team leader will prepare a Notice of 

Violation and Order that will be accompanied by a civil Settlement and 

Compliance Agreement. The Notice of Violation and Order specifies the 

violations found, the corrective measure the generator/permittee must 

take to comply with the state’s rules or permit conditions, and the 

timeframes in which to accomplish them. The Settlement and 

Compliance Agreement specifies a penalty the operation must pay in 

order to settle the case. The penalty amount will have been calculated 

using DENR’s Penalty Assessment Policy (Section VIII.9). The Penalty 

Assessment takes into account the maximum penalty amount that can be 

assessed per day per violation, the severity of the violation, a damage 

assessment, the degree of willfulness exhibited by the violator, the 

company’s violation history, the company’s ability to pay and any benefit 

the company gained for its noncompliance. 

It is customary for DENR’s team leader to contact the violator well before 

an enforcement action is finalized and issued, in order to let them know of 

the violations and pending action. Because the staff inspector has 

already kept the entity informed about potential violations, the issuance of 

an enforcement action serves as a reinforcement to make sure corrective 

measures be taken. This practice also reinforces DENR’s integrity and 

the importance of complying with the state’s hazardous waste regulations. 

Once the generator or permittee is issued an enforcement action, the 
42

violator has the opportunity to meet with department staff and negotiate, 

to some extent, the penalty amount. Once a final amount has been 

agreed upon, the violator and the Secretary both sign the Settlement and 

Compliance Agreement. The violator must then submit payment of the 

penalty.

Should a case be referred to the Attorney General’s Office, department 

staff will consult and provide background information as needed; however, 

the case will be addressed through Attorney General’s Office authorities. 

In some cases, such as those where violations have occurred by a 

company operating in several states, or in especially egregious instances, 

the state may refer a case to EPA Region 8. Such referrals would be 

performed in accordance with the state/EPA Memorandum of Agreement.

2. Enforcement of corrective action conditions

Corrective action activities are typically outlined in operating and postclosure permits, but could be implemented at hazardous waste generator 

operations in the event of a release to the environment. The program 

does not currently have any open corrective actions. When applicable, 

corrective actions will be monitored by an assigned lead staff person. 

Corrective action activities need to be conducted in a timely manner, to 

document that a particular remedy is successful. Timelines to indicate 

progress will greatly depend upon the type of remedy selected for each 

unique pollutant, location, and site characteristics. However, if a selected

remedy fails to be productive, negotiations will ensue to ensure an 

alternative appropriate path is chosen. Commitments pertaining to 

corrective action activities are specified in the state/EPA Performance 

Partnership Agreement. 

In cases where a facility shows recalcitrance toward performing corrective 

action measures, DENR will undertake enforcement actions. Already 

described previously, these actions can take the form of the informal or 

formal civil actions, referral to the state Attorney General’s Office, or 

referral to EPA Region 8.

3. Penalties and violations

See Section VI.E.1 (above) for a description regarding penalties and 

violations.

4. Time frames for enforcement actions

Enforcement actions are conducted in accordance with the federal 

Enforcement Response Policy and outlined in the MOA and State Review 

Framework.
43

5. Enforcement resources

See Section VI.E.1 (above) for a description regarding the resources used 

and additional potential resources for enforcement purposes.

6. Enforcement agreements

Enforcement policies put into practice by the state are conducted in 

accordance with the MOA, the federal Enforcement Response Policy, the 

State Review Framework, and as specified in the state/EPA Performance 

Partnership Agreement.
44

SECTION VII

ESTIMATED REGULATED ACTIVITIES

(40 CFR 271.6(g))

Table 2 (below) summarizes the number of generators, transporters and permitted TSD 

facilities currently operating in South Dakota. The table also contains information on

the quantity of hazardous waste these entities generated and handled in 2007, where 

available. Because the 2007 data are based upon information submitted for the 2007 

Biennial Report, the Universe values (i.e. number of operations) are based upon 

information currently in the RCRAInfo database. DENR does not anticipate that 

regulatory changes will result in substantial changes in the current numbers. Some 

recent discussions indicate DENR might receive a permit application for one new 

hazardous waste treatment operation at a generator facility in the state within the next 

two to five years. However, at the time of this writing this is only a possibility.

Table 2. Estimated Regulated Activities - Existing

Universe

(2010)

Waste Generated 

(2007; tons))

Waste 

Received 

(2007; tons)

Generators

 CESQGs 990 Data not collected 0

 SQGs 633 Data not collected 0

 LQGs 24 750 0

Transporters 2

Data not collected Data not collected

TSD Facilities 1 57 112
45

SECTION VIII

STATE FORMS

(40 CFR 271.6(d))

As referenced in the body of this report, the following state forms are in use by 

the program. Federal forms the state uses are indicated as such; forms unique 

to the state are listed and attached as well.

1. Regulated Waste Activity Notification – the state uses EPA Form 

8700-12, as revised 11/2009. On-line forms may be completed by 

the generator, printed and sent to the state for processing. These 

forms can be accessed through: 

http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

2. Part A/Part B Permit applications – the state uses EPA Form 8700-

23 as the Part A permit application document for potential 

hazardous waste facilities. The Part B application is not 

represented by a form that can be filled out by the applicant; rather, 

the prospective permittee must follow applicable standards detailed 

in ARSD 74:28:25:01, adopting by reference 40 CFR Part 264, and 

provide written and technical documents required based upon the 

type of facility that will be constructed. The Part A permit 

application can be accessed through: 

http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

3. Biennial Report – the state uses both EPA-designed forms and 

software provided free by the state of Florida. These forms can be 

accessed through: 

http://denr.sd.gov/des/wm/hw/hwmainpage.aspx

4. Uniform Hazardous Waste Manifests – Manifest documents used 

by generators, transporters and TSDFs must be federal forms

8700-22. These forms are only available through vendors that 

have been approved by EPA.

5. Hazardous Waste Pre-Inspection Report format – This program 

document represents the information all inspectors gather 

regarding a particular generator before conducting a hazardous 

waste inspection.

6. Notice of Inspection form – This program form is typically 

completed at the close of each on-site hazardous waste inspection. 

The form is signed by both the lead inspector and a company 

representative. A two-part form, the original is left with the 

generator.
46

7. RCRAInfo Compliance Evaluation form – Upon returning from an 

inspection trip, each inspector completes one of these program 

forms for each inspection conducted. The program’s RCRAInfo 

IOR inputs the information from these forms into the appropriate 

RCRAInfo modules. 

8. Hazardous Waste Inspection Report format – This program 

document represents a general format inspectors follow to compile 

information obtained from a hazardous waste inspection. This 

report format facilitates the consistent documentation of pertinent 

information from the inspection, including records obtained and the 

degree of compliance with the state’s hazardous waste 

requirements.

9. DENR Penalty Policy Guidance and Worksheet – This document 

contains instructions and a worksheet staff use to calculate 

penalties for violations of the state’s environmental laws and 

regulations in formal enforcement actions. This penalty policy is 

used by not only the hazardous waste program, but all 

environmental regulatory programs within DENR’s Environmental 

Services Division.
47

 Section VIII (1)

Regulated Waste Activity Notification

Form 8700-12
48

 Section VIII (2)

Part A Permit Application

Form 8700-23
49

 Section VIII (3)

 Biennial Report

 (2009)
50

 Section VIII (4)

Uniform Hazardous Waste Manifest

Form 8700-22 (example)
51

 Section VIII (5)

Hazardous Waste Pre-Inspection Report Format
52

Section VIII (6)

Notice of Inspection Form
53

Section VIII (7)

RCRAInfo Compliance Evaluation Form
54

Section VIII (8)

Hazardous Waste Inspection Report Format
55

Section VIII (9)

DENR Penalty Policy Guidance and Worksheet
56

SECTION IX

Appendix A

SDDENR Organizational Chart