South Dakota Administrative Rules › Title 74 - Department of Environment And Natural Resources › Article 74:05 - Water development › Chapter 74:05:12 - Brownfield's revitalization and economic development program › Section 74:05:12:21 - Settlement agreements

Current through Register Vol. 51, page 10, July 15, 2024
The department may enter into administrative settlement agreements with
	 brownfields applicants and recipients to provide certain environmental
	 liability assurances for brownfields projects as provided for in SDCL
	 34A-10-17. The settlement
	 agreement is only binding if the applicant or recipient completes the
	 remediation of the project.
If a person is conducting or has completed a response action regarding
	 a specific release that is addressed by the response action at a brownfields
	 site and the response action is in compliance with the State program that
	 specifically governs the response action for the protection of public health
	 and the environment, and there is a release or threatened release of a
	 hazardous substance, pollutant, or contaminant addressed by the response
	 action, the State may not take an administrative or judicial enforcement action
	 or take an action to recover response costs against the person who is
	 conducting or who has completed the response action or against the person's
	 successor's in title, against the person's tenants, or against those persons
	 who engage in operations on the property or their lender-owners regarding the
	 specific release that is addressed by the response action unless the release or
	 threatened release present an imminent and substantial endangerment to public
	 health or the environment.
The State, by and through the Department of Environment and Natural
	 Resources may issue a covenant not to sue on brownfields sites and contiguous
	 real property impacted by such sites where a person is conducting or has
	 completed a response action with certain conditions which may be revoked if the
	 conditions are not met after notice to the parties to the covenant and an
	 opportunity to cure. The covenant not to sue may contain a provision releasing
	 the person who undertook the remediation and the person's successors in title
	 and all persons who lease the property or who engage in operations on the
	 property and their lender-owners from all civil liability to the State to
	 perform any additional remediation, to pay compensation for damage to, or loss
	 of, natural resources, or for any cleanup and removal costs, if certain
	 conditions are met. Unless a covenant not to sue is revoked, liability for any
	 additional remediation may not be applied retroactively to any person for whom
	 the covenant remained in effect during that person's ownership, tenancy, or
	 operation of the property. A covenant not to sue and the protections it affords
	 does not apply to any discharge or release that occurs subsequent to the
	 State's issuance of a no further action letter which was the basis of the
	 covenant, or to a separate discharge, release, or threatened release. A
	 covenant not to sue and the protections it affords does not relieve any person
	 of the obligation to comply in the future with laws and regulations. A covenant
	 not to sue does not provide relief from any liability, either under statutory
	 or common law, unless otherwise specifically provided in the
	 covenant.
General Authority:
SDCL
		46A-1-102,
		46A-1-103.
Law Implemented:
SDCL
		46A-1-100 to
		46A-1-106,
		inclusive.