CHAPTER 34A-1
AIR POLLUTION CONTROL
34A-1-1
Policy of state--Purpose of chapter.
34A-1-2
Definition of terms.
34A-1-3
Repealed.
34A-1-4
Technical and operational services secured by secretary.
34A-1-5
Administration of chapter--Board functions--Enforcement as to radioactive
substances.
34A-1-6
Promulgation of rules--Purpose--Violation.
34A-1-6.1
Rules relating to incinerators for municipal solid waste--Requirements--Inapplicable
as to medical waste incineration--Violation.
34A-1-7
Employment of personnel by department.
34A-1-8
Delegation of functions by secretary.
34A-1-9
Studies, investigations and educational activities of department.
34A-1-10
Cooperation by department with other agencies.
34A-1-11
Classification of air contaminant sources--Reporting requirements.
34A-1-12
Records and reports required on air contaminant sources--Monitoring and sampling
methods--Other information--Violation.
34A-1-13
Access to records relating to air pollution emissions.
34A-1-14
Records and information available to public--Exception to protect trade secrets--Authorized use--Violation as misdemeanor.
34A-1-15
Establishment of ambient air quality standards--Violation.
34A-1-16
Specification of fuels permitted in state--Violation.
34A-1-17
Contamination within plant excluded from jurisdiction.
34A-1-18
Emission control and open burning requirements--Local control--Nonconformance
as violation.
34A-1-19
Emission control methods and devices required--Permission to use alternative
methods--Violation.
34A-1-20
Maintenance of motor vehicle emission control devices--Violation.
34A-1-21
Permits required for air pollutant equipment and control devices--Applications--Rules--Recommendations by secretary--Hearings--Violation--Actions taken without
a permit or in violation of permit conditions as misdemeanors.
34A-1-22
Prevention of stationary pollution sources not in compliance.
34A-1-23
Particular manufacturer not to be favored by requirements.
34A-1-24
Application for variance from rules.
34A-1-25
Interests considered in granting variance.
34A-1-26
Pre-existing uses considered in ruling on variance.
34A-1-27
Findings required for grant of variance.
34A-1-28
Repealed.
34A-1-29
Variance or renewal discretionary.
34A-1-30
Conditions required in grant of variance or renewal--Violation.
34A-1-31
Limitation when variance granted because no abatement method available.
34A-1-32
Limitation when variance based on time required for abatement measures.
34A-1-33
Variances limited to three years.
34A-1-34
Renewal of variances--Application and hearing required.
34A-1-35
Emergency provisions unimpaired by variance provisions.
34A-1-36
Municipal and county programs approved by board--Application to state facilities.
34A-1-37
Municipal and county cooperation with other agencies.
34A-1-38
Control of air contaminant sources beyond capability of local authority.
34A-1-39
Civil action for violation of requirements--Penalty--Liability for damages to
environment--Jury trial.
34A-1-40
Investigations on board's own initiative--Petition by local board or electors.
34A-1-41
Entry for inspection to determine compliance--Refusal of access prohibited.
34A-1-42
Report of inspection furnished to owner or operator.
34A-1-43
Hearings by board--Procedural powers.
34A-1-44
Issuance and enforcement of orders.
34A-1-45
Emergency order for immediate reduction or discontinuance of emissions.
34A-1-46
Hearing requested on emergency order--Action by board.
34A-1-47
Notice of violation--Order for corrective action included--Violator subject to civil
penalty.
34A-1-48
Hearing requested on order for corrective action--Time allowed.
34A-1-49
Contested case proceeding in lieu of order--Consent agreement.
34A-1-50
Board orders after hearing.
34A-1-51
Time allowed for corrective action in board order.
34A-1-52
Enforcement remedies not barred by actions for penalties.
34A-1-53
Voluntary compliance effort not precluded.
34A-1-54
Private remedies unimpaired.
34A-1-55
Severability of provisions and applications.
34A-1-56
General permits for categories of air pollution sources--Terms and conditions--Modification, suspension or revocation--Violation.
34A-1-57
State administration of air pollution control program--Imposition of fees.
34A-1-58
Annual fee--Calculation--Annual adjustment of fee--Use of proceeds--Existing
sources of pollution--Written notice from department.
34A-1-58.1
Ethanol production plants--Application and annual fees.
34A-1-59
Establishment of air quality subfund--Source of subfund--Administration--Expenditures--Unexpended funds.
34A-1-60
Obligation to pay fee imposed on regular air contaminant--Date due.
34A-1-61
Permit revocation, modification, or suspension--Fees.
34A-1-62
Additional penalty for knowingly violating provisions of this chapter.
34A-1-1 Policy of state--Purpose of chapter.
34A-1-1.
Policy of state--Purpose of chapter.
It is hereby declared to be the public policy of
the state to achieve and maintain reasonable levels of air quality which will protect human health and
safety, prevent injury to plant and animal life and property, foster the comfort and convenience of
its inhabitants, promote the economic and social development of the state and, to the greatest degree
practicable, facilitate the enjoyment of the natural attractions of the state. It is also declared that local
and regional air pollution control programs are to be supported to the extent practicable as essential
instruments for the securing and maintenance of appropriate levels of air quality. To these ends it
is the purpose of this chapter to provide for a coordinated state-wide program of air pollution
prevention, abatement and control, for an appropriate distribution of responsibilities among the state
and local units of government, and to facilitate cooperation across jurisdictional lines in dealing with
problems of air pollution not confined within single jurisdictions, and to provide a framework within
which all values may be balanced in the public interest.
Source: SL 1970, ch 203, § 1; SDCL Supp, § 34-16A-1.
34A-1-2 Definition of terms.
34A-1-2.
Definition of terms.
Terms used in this chapter mean:
(1)
"Air contaminant," dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous
substances, radioactive materials as defined in chapter 34-21, or any combination thereof;
(2)
"Air pollution," the presence in the outdoor atmosphere of one or more air contaminants
in such quantities and duration as is or tend to be injurious to human health or welfare,
animals or plant life, or property, or would interfere with the enjoyment of life or
property;
(3)
"Board," the Board of Minerals and Environment;
(4)
"Department," the Department of Environment and Natural Resources;
(5)
"Emission," a release into the outdoor atmosphere of air contaminants;
(6)
"Person," any individual, partnership, limited liability company, firm, association,
municipality, public or private corporation, subdivision or agency of the state, trust, estate,
or any other legal entity;
(7)
"Secretary," the secretary of environment and natural resources.
Source: SL 1970, ch 203, § 2; SDCL Supp, § 34-16A-2; SL 1973, ch 222, § 1; SL 1978, ch 250,
§ 6; SL 1994, ch 351, § 66.
34A-1-3
34A-1-3.
Repealed by SL 1993, ch 256, § 1.
34A-1-4 Technical and operational services secured by secretary.
34A-1-4.
Technical and operational services secured by secretary.
The secretary shall have
power to secure necessary scientific, technical, administrative, and operational services, including
laboratory facilities by contract or otherwise.
Source: SL 1970, ch 203, § 5 (5); SDCL Supp, § 34-16A-8; SL 1977, ch 280, § 2.
34A-1-5 Administration of chapter--Board functions--Enforcement as to radioactive substances.
34A-1-5.
Administration of chapter--Board functions--Enforcement as to radioactive
substances.
The administration of this chapter shall be the responsibility of the secretary of water and
natural resources except that the Board of Minerals and Environment shall perform any
quasi-judicial, quasi-legislative, advisory, and special budgetary functions set out in this chapter. The
board, with the concurrence of the secretary of water and natural resources may enforce those
regulations promulgated pursuant to chapter 34-21 which pertain to the release of radioactive
substances into the atmosphere.
Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-11; SL 1971, ch 204, § 1; SL 1977, ch 280,
§ 3; SL 1978, ch 250, § 7.
34A-1-6 Promulgation of rules--Purpose--Violation.
34A-1-6.
Promulgation of rules--Purpose--Violation.
The Board of Minerals and
Environment may promulgate rules pursuant to chapter 1-26:
(1)
To establish ambient air quality standards;
(2)
To specify kind and composition of fuel sold, stored, or used;
(3)
To establish requirements for open burning;
(4)
To require records and maintenance of records, reports, install, use, and maintain
monitoring equipment;
(5)
To establish methods including sampling of emissions for air pollution sources;
(6)
To establish requirements for methods and installation of machines or devices to prevent
or significantly reduce air emissions;
(7)
To establish procedures for attainment and maintenance of ambient air quality standards;
(8)
To monitor ambient air quality;
(9)
To establish procedures for variances and renewal of variances; and
(10)
To establish air quality standards, requirements and procedures related to incinerators for
municipal solid waste.
A violation of the rules promulgated pursuant to this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 5 (1); SDCL Supp, § 34-16A-12; SL 1977, ch 280, § 4; SL 1980, ch
238, § 10; SL 1990, ch 283, § 1; SL 1992, ch 158, § 6A.
34A-1-6.1 Rules relating to incinerators for municipal solid waste--Requirements--Inapplicable as to...
34A-1-6.1.
Rules relating to incinerators for municipal solid waste--Requirements--Inapplicable as to medical waste incineration--Violation.
The Board of Minerals and Environment
shall promulgate rules governed by subdivision § 34A-1-6(10) by October 1, 1990. No new permit
related to incinerators for municipal solid waste may be issued under this chapter until the rules
required in this section are in effect. The rules required in this section need not address medical
waste incineration, and the prohibition of permitting provided in this section does not apply to
medical waste incineration. A violation of the rules promulgated pursuant to this section is subject
to § 34A-1-39.
Source: SL 1990, ch 283, § 1A; SL 1992, ch 158, § 6B.
34A-1-7 Employment of personnel by department.
34A-1-7.
Employment of personnel by department.
In accordance with chapter 3-6A, the
department may employ, compensate, and prescribe the powers and duties of such persons as may
be necessary to carry out the provisions of this chapter.
Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-14; revised pursuant to SL 1967, ch 265.
34A-1-8 Delegation of functions by secretary.
34A-1-8.
Delegation of functions by secretary.
The secretary may delegate to officers and
employees of the department such functions, duties, and authority as are vested in the department
by this chapter.
Source: SL 1970, ch 203, § 3; SDCL Supp, § 34-16A-15.
34A-1-9 Studies, investigations and educational activities of department.
34A-1-9.
Studies, investigations and educational activities of department.
The department
shall have power to:
(1)
Encourage and conduct studies, investigations and research relating to air pollution and
its causes, effects, prevention, abatement, and control.
(2)
Determine by means of field studies and sampling the degree of air pollution in the state
and the several parts thereof.
(3)
Make a continuing study of the effects of the emission of air contaminants from motor
vehicles on the quality of the outdoor atmosphere of this state and the several parts
thereof, and make recommendations to appropriate public and private bodies with respect
thereto.
(4)
Collect and disseminate information and conduct educational and training programs
relating to air pollution.
Source: SL 1970, ch 203, § 5 (9) to (11), (13); SDCL Supp, § 34-16A-16; SL 1977, ch 280, § 5.
34A-1-10 Cooperation by department with other agencies.
34A-1-10.
Cooperation by department with other agencies.
The department may:
(1)
Advise, consult, and cooperate with agencies of the state, local governments, industries,
other states, interstate or interlocal agencies, and the federal government, and with
interested persons or groups.
(2)
Encourage local units of government to handle air pollution problems within their
respective jurisdictions and on a cooperative basis, and to provide technical and
consultative assistance therefor.
(3)
Encourage voluntary cooperation by persons, or affected groups to achieve the purposes
of this chapter.
(4)
Consult, upon request, with any person proposing to construct, install, or otherwise
acquire an air contaminant source or device or system for the control thereof, concerning
the efficacy of such device or system, or the air pollution problem that may be related to
the source, device or system. Nothing in any such consultation may be construed to
relieve any person from compliance with this chapter, rules and regulations in force
pursuant thereto, or any other provisions of law.
Source: SL 1970, ch 203, § 5(6) to (8), (14), (15); SDCL Supp, § 34-16A-17; SL 1977, ch 280, § 6;
SL 1986, ch 295, § 6.
34A-1-11 Classification of air contaminant sources--Reporting requirements.
34A-1-11.
Classification of air contaminant sources--Reporting requirements.
The Board of
Minerals and Environment, by rules promulgated pursuant to chapter 1-26, may classify air
contaminant sources according to levels and types of emissions and other characteristics which relate
to air pollution, and may require reporting for any such class or classes. Classifications made
pursuant to this section may be for application to the state as a whole or to any designated area of
the state, and shall be made with special reference to effects on health, economic and social factors,
and physical effects on property.
Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-18; SL 1977, ch. 280, § 7; SL 1980, ch 238,
§ 11; SL 1993, ch 256, § 2.
34A-1-12 Records and reports required on air contaminant sources--Monitoring and sampling methods--...
34A-1-12.
Records and reports required on air contaminant sources--Monitoring and
sampling methods--Other information--Violation.
The department or board may require the owner
or operator of any air contaminant source to establish and maintain such records; make such reports;
install, use, and maintain such monitoring equipment or methods; sample such emissions in
accordance with such methods, at such locations, intervals, and procedures as the department or
board shall prescribe; and provide such other information relative to compliance with this chapter
and rules and regulations in force pursuant thereto as the department or board may require, including
the location, size of and height of contaminant outlets, processes employed, fuels used and the nature
and time periods or duration of emissions. Any violator of this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 6; SDCL Supp, § 34-16A-19; SL 1973, ch 222, § 4; SL 1992, ch 158,
§ 7.
34A-1-13 Access to records relating to air pollution emissions.
34A-1-13.
Access to records relating to air pollution emissions.
The board shall have power
to require access to records relating to emissions which cause or contribute to air pollution.
Source: SL 1970, ch 203, § 5 (4); SDCL Supp, § 34-16A-20; SL 1977, ch 280, § 8.
34A-1-14 Records and information available to public--Exception to protect trade secrets--Authorize...
34A-1-14.
Records and information available to public--Exception to protect trade secrets--Authorized use--Violation as misdemeanor.
Any records, reports, or information obtained by the
department or board from owners or operators of an air contaminant source or sources shall be
available to the public, except that upon a showing satisfactory to the board by the owners or
operators of an air contaminant source that the records, reports, or information obtained by the
department or board regarding processes or production technique are sufficiently unique to affect
adversely the competitive position of the owner or operator by revealing trade secrets, the department
and board shall consider the record, report, or information or particular portion thereof confidential
in the administration of this chapter. Nothing in this section prevents the disclosure of otherwise
confidential records or information by the department or board, or any department, agency, or officer
of state government if necessary for the prosecution of violations of the chapter or rules promulgated
pursuant to this chapter. Nothing in this section prevents the use of such records or information by
the department, or any department, agency, or officer of the state government in compiling or
publishing analyses or summaries relating to the general condition of the outdoor atmosphere if the
analyses or summaries do not identify, directly or indirectly, any owner or operator or reveal any
information otherwise confidential under this section. Notwithstanding the provisions of this section,
all data relating to air pollution emissions as defined in § 34A-1-2, are public records, and subject
to public disclosure as provided in § 1-40-31.
A violation of this section is a Class 2 misdemeanor.
Source: SL 1970, ch 203, §§ 13, 15; SDCL Supp, § 34-16A-21; SL 1973, ch 222, § 5; SL 1977, ch
190, § 30; SL 1995, ch 203, § 1.
34A-1-15 Establishment of ambient air quality standards--Violation.
34A-1-15.
Establishment of ambient air quality standards--Violation.
The Board of Minerals
and Environment shall promulgate rules pursuant to chapter 1-26 to establish ambient air quality
standards for the state as a whole or for any part of the state. Any person who violates these standards
is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 5 (12); SDCL Supp, § 34-16A-22; SL 1977, ch 280, § 9; SL 1980, ch
238, § 12; SL 1992, ch 158, § 8; SL 1993, ch 256, § 3.
34A-1-16 Specification of fuels permitted in state--Violation.
34A-1-16.
Specification of fuels permitted in state--Violation.
The Board of Minerals and
Environment may promulgate rules pursuant to chapter 1-26 that specify the kind or composition of
fuels permitted to be sold, stored or used within the state if it is deemed by the board to be necessary
for the achievement of ambient air quality standards. Any person who violates these rules is subject
to § 34A-1-39.
Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, § 34-16A-22.1; SL
1980, ch 238, § 13; SL 1992, ch 158, § 9; SL 1993, ch 256, § 4.
34A-1-17 Contamination within plant excluded from jurisdiction.
34A-1-17.
Contamination within plant excluded from jurisdiction.
Nothing in this chapter
shall be construed to grant to the department or board any jurisdiction or authority with respect to
air contamination existing solely within commercial and industrial plants, works, or shops.
Source: SL 1970, ch 203, § 17; SDCL Supp, § 34-16A-23.
34A-1-18 Emission control and open burning requirements--Local control--Nonconformance as violation...
34A-1-18.
Emission control and open burning requirements--Local control--Nonconformance
as violation.
The Board of Minerals and Environment, for the purpose of controlling pollution, shall
by rules promulgated pursuant to chapter 1-26 establish emission control requirements and
reasonable requirements for open burning. The requirements may vary from area to area, as may be
appropriate to facilitate accomplishment of the purposes of this chapter, and in order to take
necessary or desirable account of varying local conditions. Any general prohibition against all open
burning shall be determined by each municipality or by each county for areas outside the boundaries
of the municipalities. The board may not adopt any rule generally prohibiting all open burning, but
any board rule regulating open burning shall be only as is necessary to address a specific problem.
Any person who allows an emission which does not conform to a requirement in force pursuant to
this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 9; SDCL Supp, § 34-16A-24; SL 1977, ch 280, § 10; SL 1977, ch 281,
§ 1; SL 1980, ch 238, § 14; SL 1992, ch 158, § 10; SL 1993, ch 256, § 5.
34A-1-19 Emission control methods and devices required--Permission to use alternative methods--Viol...
34A-1-19.
Emission control methods and devices required--Permission to use alternative
methods--Violation.
Whenever the board finds that there are methods, machines, devices, or
construction features which are reasonably feasible that will prevent or significantly reduce the
emission of air resulting in pollution and that the public interest will be served thereby, it may
require the use of such methods and the installation of such features, machines, or devices; provided,
however, that the owner or operator of an air contaminant source may use any methods, construction
features, machines, or devices which are as effective as those required by the board. The owner or
operator of an air contaminant source may apply to the board for permission to use alternative
methods, construction features, machines, or devices upon a showing by the owner or operator that
the alternative methods, construction features, machines, or devices are as effective as those required
by the board. Any person who violates this section is subject to § 34A-1-39.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-26; SL 1973, ch 222, § 6; SL 1992, ch 158,
§ 11.
34A-1-20 Maintenance of motor vehicle emission control devices--Violation.
34A-1-20.
Maintenance of motor vehicle emission control devices--Violation.
The Board of
Minerals and Environment may promulgate rules pursuant to chapter 1-26 to control emissions from
motor vehicles by the proper maintenance of all emission control equipment with which the vehicle
was equipped at the time of original purchase. Any violation of these rules is subject to § 34A-1-39.
Source: SL 1973, ch 222, § 3; SDCL Supp, § 34-16A-26.1; SL 1980, ch 238, § 15; SL 1992, ch
158, § 12; SL 1993, ch 256, § 6.
34A-1-21 Permits required for air pollutant equipment and control devices--Applications--Rules--Rec...
34A-1-21.
Permits required for air pollutant equipment and control devices--Applications--Rules--Recommendations by secretary--Hearings--Violation--Actions taken without a permit or in
violation of permit conditions as misdemeanors.
The board may prohibit, by rules promulgated
pursuant to chapter 1-26, the installation, alteration, or use of any machine, equipment, device, or
other article which it finds may cause or contribute to air pollution or is intended primarily to prevent
or control the emission of air pollutants, unless a permit therefor has been obtained from the board
or the secretary. Any person in violation of these rules is subject to § 34A-1-39.
The board may require that applications for such permits shall be accompanied by plans,
specifications, and such other information as the board deems necessary.
The board, by rules promulgated pursuant to chapter 1-26, shall provide for the issuance,
suspension, revocation, and renewal of any permits which it may reasonably require pursuant to this
section. Procedures shall provide for a recommendation on such a permit matter by the secretary with
an opportunity for a contested case hearing by the board on its own motion or upon protest by the
applicant or an adversely affected person. If the recommendation of the secretary is not contested,
that recommendation shall become a final determination on the application. If an uncontested
recommendation is for approval or conditional approval of the application, the permit shall be issued
by the secretary consistent with his recommendation.
A violation of a condition of a permit issued pursuant to this section is subject to § 34A-1-39.
Any person who, without a permit, commits an action for which a permit is required is guilty of
a Class 1 misdemeanor. Any violation of a permit condition is a Class 2 misdemeanor and is subject
to § 34A-1-39.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-27; SL 1977, ch 280, § 11; SL 1980, ch 238,
§ 16; SL 1991, ch 288, § 5; SL 1992, ch 158, § 13; SL 1992, ch 254, § 94.
34A-1-22 Prevention of stationary pollution sources not in compliance.
34A-1-22.
Prevention of stationary pollution sources not in compliance.
The department may
enjoin the construction, modification, or operation of any stationary source of air pollution at any
location where the emissions from such sources will prevent the attainment and maintenance of
compliance with rules and regulations adopted by the board.
Source: SDCL, § 34-16A-16 as added by SL 1973, ch 222, § 2; SDCL Supp, § 34-16A-27.1; SL
1992, ch 158, § 14.
34A-1-23 Particular manufacturer not to be favored by requirements.
34A-1-23.
Particular manufacturer not to be favored by requirements.
Nothing in § 34A-1-19
or 34A-1-21 shall be construed to authorize the board to require the use of machinery, devices, or
equipment from a particular supplier or produced by a particular manufacturer, if the required
performance standards may be met by machinery, devices, or equipment otherwise available.
Source: SL 1970, ch 203, § 7; SDCL Supp, § 34-16A-28.
34A-1-24 Application for variance from rules.
34A-1-24.
Application for variance from rules.
Any person who owns or is in control of any
plant, building structure, process, or equipment may apply to the board for a variance from rules
governing the quality, nature, duration, or extent of emissions. The application shall be accompanied
by such information and data as the board may require. However, no variance may be granted for any
facility subject to Title V of the Federal Clean Air Act 42 U.S.C. §§ 7401 to 7642, inclusive, as
amended to January 1, 1995.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-30; SL 1993, ch 256, § 7; SL 1995, ch 203,
§ 2.
34A-1-25 Interests considered in granting variance.
34A-1-25.
Interests considered in granting variance.
No variance shall be granted pursuant
to §§ 34A-1-24 to 34A-1-35, inclusive, until the board has considered the relative interests of the
applicant, the owners of property likely to be affected by the discharges, and the general public.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-31.
34A-1-26 Pre-existing uses considered in ruling on variance.
34A-1-26.
Pre-existing uses considered in ruling on variance.
In determining whether or not
a variance shall be granted by the board it shall take into consideration whether or not the facility was
in existence on July 1, 1970, and if such facility was constructed after July 1, 1970, whether or not
such facility was in compliance at the time of its construction.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-32.
34A-1-27 Findings required for grant of variance.
34A-1-27.
Findings required for grant of variance.
The board may grant a variance from rules
or regulations governing the quality, nature, duration, or extent of emissions, but only after
proceedings under chapter 1-26, if it finds that:
(1)
The emissions occurring or proposed to occur do not endanger or tend to endanger human
health or safety; and
(2)
Compliance with the rules or regulations from which variance is sought would produce
serious hardship without equal or greater benefits to the public.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-33; revised pursuant to SL 1972, ch 15, § 4.
34A-1-28
34A-1-28.
Repealed by SL 1986, ch 295, § 7.
34A-1-29 Variance or renewal discretionary.
34A-1-29.
Variance or renewal discretionary.
A variance or renewal shall not be a right of
the applicant or holder thereof but shall be in the discretion of the board.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-34.
34A-1-30 Conditions required in grant of variance or renewal--Violation.
34A-1-30.
Conditions required in grant of variance or renewal--Violation.
Any variance or
renewal thereof shall be granted within the requirements of § 34A-1-27 and for time periods and
under conditions consistent with the reasons therefor, and within the limitations set forth in §§ 34A-1-31 to 34A-1-33, inclusive. Any violation of a variance granted pursuant to this section is subject
to § 34A-1-39.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-35; SL 1992, ch 158, § 16A.
34A-1-31 Limitation when variance granted because no abatement method available.
34A-1-31.
Limitation when variance granted because no abatement method available.
If the
variance is granted on the ground that there is no practicable means known or available for the
adequate prevention, abatement, or control of the air pollution involved, it shall be only until the
necessary means for prevention, abatement, or control become known and available and subject to
the taking of any substitute or alternate measures that the board may prescribe.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-36.
34A-1-32 Limitation when variance based on time required for abatement measures.
34A-1-32.
Limitation when variance based on time required for abatement measures.
If the
variance is granted on the ground that compliance with the particular requirement or requirements
from which variance is sought will necessitate the taking of measures which, because of their extent
or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such
reasonable time as, in the view of the board is requisite for the taking of the necessary measures. A
variance granted on the ground specified herein shall contain a timetable for the taking of action in
an expeditious manner and shall be conditioned on adherence to such timetable.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-37.
34A-1-33 Variances limited to three years.
34A-1-33.
Variances limited to three years.
If the variance is granted on the ground that it
is justified to relieve or prevent hardship of a kind other than that provided for in §§ 34A-1-31 and
34A-1-32, it shall be for not more than three years.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-38; SL 1977, ch 280, § 12.
34A-1-34 Renewal of variances--Application and hearing required.
34A-1-34.
Renewal of variances--Application and hearing required.
Any variance granted
pursuant to §§ 34A-1-24 to 34A-1-35, inclusive, may be renewed on terms and conditions and for
periods which would be appropriate on initial granting of a variance. If complaint is made to the
board on account of the variance, no renewal shall be granted, unless following proceedings under
chapter 1-26, the board finds the renewal is justified. No renewal shall be granted except on
application therefor. Any such application shall be made prior to the expiration of the variance.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-39; revised pursuant to SL 1972, ch 15, § 4.
34A-1-35 Emergency provisions unimpaired by variance provisions.
34A-1-35.
Emergency provisions unimpaired by variance provisions.
Nothing in §§ 34A-1-24 to 34A-1-34, inclusive, and no variance or renewal granted pursuant thereto shall be construed
to prevent or limit the application of the emergency provisions and procedures of §§ 34A-1-45 and
34A-1-46 to any person or his property.
Source: SL 1970, ch 203, § 12; SDCL Supp, § 34-16A-40.
34A-1-36 Municipal and county programs approved by board--Application to state facilities.
34A-1-36.
Municipal and county programs approved by board--Application to state facilities.
Each municipality and each county may with the approval of the Board of Minerals and Environment
establish and thereafter administer programs within its jurisdiction an air pollution control program
which provides by ordinance or local law for requirements as strict or more strict and more extensive
than those imposed by this chapter and regulations issued thereunder, or, upon prior review and
approval by the board, less restrictive requirements. The air pollution control jurisdiction authorized
pursuant to this section shall apply to state facilities located within the boundaries of the municipality
or county in the event the municipality or county has been found to be in violation of National
Ambient Air Quality Standards.
Source: SL 1970, ch 203, §§ 9, 14; SDCL Supp, §§ 34-16A-25, 34-16A-41; SL 1979, ch 241.
34A-1-37 Municipal and county cooperation with other agencies.
34A-1-37.
Municipal and county cooperation with other agencies.
Any municipality or
county may administer all or part of its air pollution control program in cooperation with one or more
municipalities or counties of this state or of other states provided that the requirements of other
statutes relating to cooperative agreements are met.
Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-42.
34A-1-38 Control of air contaminant sources beyond capability of local authority.
34A-1-38.
Control of air contaminant sources beyond capability of local authority.
If the
board finds that the control of a particular class of air contaminant source is beyond the reasonable
capability of the local or county air pollution control authorities, the department may assume and
retain jurisdiction over that class of air contaminant source.
Source: SL 1970, ch 203, § 14; SDCL Supp, § 34-16A-43.
34A-1-39 Civil action for violation of requirements--Penalty--Liability for damages to environment-...
34A-1-39.
Civil action for violation of requirements--Penalty--Liability for damages to
environment--Jury trial.
Any person subject to this section is liable for a civil penalty not to exceed
ten thousand dollars per day of violation or for damages to the environment of the state, or both. An
action for the recovery of a civil penalty shall, upon demand, be tried to a jury.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-44; SL 1973, ch 222, § 7; SL 1977, ch 190,
§ 31; SL 1977, ch 280, § 13; SL 1988, ch 291, § 17; SL 1990, ch 283, § 2; SL 1992, ch 158, § 15.
34A-1-40 Investigations on board's own initiative--Petition by local board or electors.
34A-1-40.
Investigations on board's own initiative--Petition by local board or electors.
The
board may upon its own initiative cause to be investigated the alleged pollution of the air or any
other violation of this chapter including the violation of any regulations issued pursuant to this
chapter, or such investigation shall be made upon the verified petition of the governing body of any
municipality or any municipal or county board of health or any fifteen electors of the state.
Source: SDCL, § 34-16A-11 as added by SL 1971, ch 204, § 1; SDCL Supp, § 34-16A-44.1; SL
1992, ch 60, § 2.
34A-1-41 Entry for inspection to determine compliance--Refusal of access prohibited.
34A-1-41.
Entry for inspection to determine compliance--Refusal of access prohibited.
Any
duly authorized officer, employee, or representative of the department may enter and inspect that part
of any property, premise, or place in which he has reasonable grounds to believe is the source of air
pollution at any reasonable time for the purpose of investigating the air pollution or of ascertaining
the state of compliance with this chapter and rules and regulations in force pursuant thereto. No
person shall refuse entry or access to any authorized representative of the department who requests
entry for the purpose of such investigation, and who presents appropriate credentials; nor shall any
person obstruct, hamper, or interfere with any such investigation.
Source: SL 1970, ch 203, § 8; SDCL Supp, § 34-16A-46; SL 1973, ch 222, § 8.
34A-1-42 Report of inspection furnished to owner or operator.
34A-1-42.
Report of inspection furnished to owner or operator.
If requested, the owner or
operator of the premises inspected pursuant to § 34A-1-41 shall receive a report setting forth all the
facts found which relate to compliance status.
Source: SL 1970, ch 203, § 8; SDCL Supp, § 34-16A-47.
34A-1-43 Hearings by board--Procedural powers.
34A-1-43.
Hearings by board--Procedural powers.
In addition to any other powers conferred
on it by law the board shall have power to hold hearings relating to any aspect of or matter in the
administration of this chapter, and in connection therewith, exercise the powers granted by chapter
1-26.
Source: SL 1970, ch 203, § 5 (2); SDCL Supp, § 34-16A-48; revised pursuant to SL 1972, ch 15,
§ 4.
34A-1-44 Issuance and enforcement of orders.
34A-1-44.
Issuance and enforcement of orders.
In addition to any other powers conferred on
it by law the board shall have power to issue such orders as may be necessary to effectuate the
purposes of this chapter and enforce the same by all appropriate administrative and judicial
proceedings.
Source: SL 1970, ch 203, § 5 (3); SDCL Supp, § 34-16A-49.
34A-1-45 Emergency order for immediate reduction or discontinuance of emissions.
34A-1-45.
Emergency order for immediate reduction or discontinuance of emissions.
Any
other provisions of law to the contrary notwithstanding, if the secretary finds that any person is
causing or contributing to air pollution and that such pollution creates an emergency by causing
imminent danger to human health or safety and requires immediate action to protect human health
or safety, the secretary shall order such person or persons to reduce or discontinue immediately the
emission of air contaminants. Such emergency order shall become effective immediately on service
upon person or persons responsible therefor and any person to whom such an order is directed shall
comply therewith immediately.
Source: SL 1970, ch 203, § 11; SDCL Supp, § 34-16A-50.
34A-1-46 Hearing requested on emergency order--Action by board.
34A-1-46.
Hearing requested on emergency order--Action by board.
Upon the request for a
hearing by any person or persons named in an order served pursuant to § 34A-1-45, the secretary
shall proceed under chapter 1-26. Following the completion of such proceedings, the board shall
affirm, modify or set aside the order of the secretary.
Source: SL 1970, ch 203, § 11; SDCL Supp, § 34-16A-51; revised pursuant to SL 1972, ch 15, § 4.
34A-1-47 Notice of violation--Order for corrective action included--Violator subject to civil penal...
34A-1-47.
Notice of violation--Order for corrective action included--Violator subject to civil
penalty.
If the secretary has reason to believe that a violation of any provision of this chapter or rule
pursuant thereto has occurred, he may cause written notice to be served upon the alleged violator.
The notice shall specify the provision of this chapter or rule alleged to be violated, and the facts
alleged to constitute a violation thereof, and may include an order that necessary corrective action
be taken within a reasonable time. Any person who violates an order pursuant to this section is
subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to
the environment, or both.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-53; SL 1977, ch 280, § 14; SL 1990, ch 283,
§ 3; SL 1992, ch 158, § 15A.
34A-1-48 Hearing requested on order for corrective action--Time allowed.
34A-1-48.
Hearing requested on order for corrective action--Time allowed.
Any order issued
pursuant to § 34A-1-47 shall become final unless, no later than twenty days after the date the notice
and order are served, the person or persons named therein request in writing a hearing before the
board. Upon such request, the board shall proceed in compliance with chapter 1-26.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-54; revised pursuant to SL 1972, ch 15, § 4;
SL 1977, ch 280, § 15.
34A-1-49 Contested case proceeding in lieu of order--Consent agreement.
34A-1-49.
Contested case proceeding in lieu of order--Consent agreement.
In lieu of an order,
the board chairman may schedule a contested case under chapter 1-26 before the board. Nothing in
this chapter shall prevent the department from notifying an alleged violator of violations and
negotiating a consent agreement instead of initiating proceedings under § 34A-1-47. Any consent
agreement shall be approved by the board.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-55; revised pursuant to SL 1972, ch 15, § 4;
SL 1977, ch 280, § 16.
34A-1-50 Board orders after hearing.
34A-1-50.
Board orders after hearing.
If, after proceedings held pursuant to § 34A-1-48 or
34A-1-49, the board finds that a violation or violations have occurred, it shall affirm or modify any
order previously issued under § 34A-1-47 by the board chairman, or issue an appropriate order or
orders for the prevention, abatement, or control of the emissions or air pollution involved. If, after
proceedings on an order contained in a notice the board finds that no violation is occurring, it shall
rescind the order.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-57; SL 1977, ch 280, § 17.
34A-1-51 Time allowed for corrective action in board order.
34A-1-51.
Time allowed for corrective action in board order.
Any order issued as part of a
notice or after proceedings under chapter 1-26 shall prescribe the date or dates by which the violation
or violations shall cease and may prescribe timetables for necessary action in preventing, abating,
or controlling the emissions of air pollution.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-58.
34A-1-52 Enforcement remedies not barred by actions for penalties.
34A-1-52.
Enforcement remedies not barred by actions for penalties.
Action pursuant to
§ 34A-1-39 or the second paragraph of § 34A-1-14 shall not be a bar to enforcement of this chapter
or rules in force pursuant thereto, and orders made pursuant to this chapter by injunction or other
appropriate remedy.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-59; SL 1977, ch 280, § 18.
34A-1-53 Voluntary compliance effort not precluded.
34A-1-53.
Voluntary compliance effort not precluded.
Nothing in this chapter shall prevent
the department from making efforts to obtain voluntary compliance through warning, conference,
or any other appropriate means.
Source: SL 1970, ch 203, § 10; SDCL Supp, § 34-16A-61.
34A-1-54 Private remedies unimpaired.
34A-1-54.
Private remedies unimpaired.
Nothing in this chapter shall be construed to abridge,
limit, or otherwise impair the right of any person to damages or other relief on account of injury to
persons or property and to maintain any action or other appropriate proceedings therefor.
Source: SL 1970, ch 203, § 15; SDCL Supp, § 34-16A-62.
34A-1-55 Severability of provisions and applications.
34A-1-55.
Severability of provisions and applications.
If a part of this chapter is invalid, all
valid parts that are severable from the invalid part remain in effect. If a part of this chapter is invalid
in one or more of its applications, the part remains in effect in all valid applications that are severable
from the invalid application.
Source: SL 1970, ch 203, § 18; SDCL Supp, § 34-16A-63.
34A-1-56 General permits for categories of air pollution sources--Terms and conditions--Modificatio...
34A-1-56.
General permits for categories of air pollution sources--Terms and conditions--Modification, suspension or revocation--Violation.
Upon the recommendation of the secretary and
after public notice in at least three newspapers of general circulation in this state and notice to all
municipalities, counties, and tribal governments and opportunity for public hearing, the board may
issue general permits for categories of air pollution sources. However, a general permit may only be
issued to sources that are required by federal law to be permitted and may be no more stringent than
any federal law, rule, or regulation that is applicable to the source being permitted. Air pollution
control activities conducted in conformity with a general permit do not require a permit issued under
§ 34A-1-21.
A general permit remains in effect until suspended, revoked, or modified by the board. A general
permit may be modified after public notice and opportunity for public hearing. A general permit may
be suspended or revoked after publication of notice and order of suspension and revocation in at least
three newspapers of general circulation in this state. If an affected facility or interested party wishes
to contest the order, a request for hearing shall be filed with the department within twenty days. A
hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be
published in at least three newspapers of general circulation in this state. Any facility operating under
a general permit pursuant to this section, upon the filing of a complaint to the board, and upon action
by the board in accordance with the contested case provisions of chapter 1-26, may be removed from
the jurisdiction of the general permit and required to obtain an individual permit.
A violation of a condition of a permit issued pursuant to this section, or the operation of a source
covered by this section without a permit is subject to § 34A-1-39.
Source: SL 1991, ch 288, § 2; SL 1992, ch 158, § 16; SL 1993, ch 257, § 8; SL 1995, ch 203, § 3.
34A-1-57 State administration of air pollution control program--Imposition of fees.
34A-1-57.
State administration of air pollution control program--Imposition of fees.
In order
to enhance economic development, provide increased customer service, protect the public health,
safety, welfare, and the environment of this state, the state shall retain state administration of the air
pollution control program as provided under Title V of the Federal Clean Air Act as amended to
January 1, 1992. In order to retain state administration of this program, as provided in the Clean Air
Act, fees shall be imposed upon certain air pollution point sources as provided in § 34A-1-58.
Proceeds from the fees shall be used to defray the costs of administering the state's air quality
permitting program.
Source: SL 1992, ch 254, § 72; SL 1993, ch 34, § 3.
34A-1-58 Annual fee--Calculation--Annual adjustment of fee--Use of proceeds--Existing sources of po...
34A-1-58.
Annual fee--Calculation--Annual adjustment of fee--Use of proceeds--Existing
sources of pollution--Written notice from department.
Concurrent with the submittal of a permit
application pursuant to this chapter and annually for the duration of the permit, the applicant shall
submit to the department a fee not to exceed twenty-five dollars per ton of each regulated pollutant
as determined by the provisions of Title V of the Federal Clean Air Act, 42 U.S.C. 7401 et seq. as
amended to January 1, 1992, or a lesser amount as set by the secretary by rules promulgated pursuant
to chapter 1-26. The secretary may exclude any amount of regulated pollutant emitted by any source
in excess of four thousand tons per year in determining the amount of fee required for any operating
source. The secretary shall develop a fee structure which equitably assesses an annual fee for
administration costs and an annual fee based on emissions, the sum of which covers the estimated
total costs of administering a delegated state air quality program. The secretary shall, by rules
promulgated pursuant to chapter 1-26, annually adjust the fee, if necessary, in accordance with the
consumer price index for that calendar year. The fee shall be used to cover the reasonable costs, both
direct and indirect, of developing and administering the permitting requirements in this chapter,
including the reasonable costs of:
(1)
Reviewing and acting on any application for a permit or permit revision;
(2)
Implementing and enforcing the terms and conditions of the permit if the permit is issued.
This amount does not include any court costs or other costs associated with any
enforcement action;
(3)
Emissions and ambient monitoring, including adequate resources to audit and inspect
source-operated monitoring programs;
(4)
Preparing generally applicable regulations or guidance;
(5)
Modeling, analysis, or demonstrations;
(6)
Preparing inventories and tracking emissions; and
(7)
Providing support to sources under the small business stationary source technical and
environmental compliance assistance program.
For any existing source of air contaminants that is subject to Title V of the Federal Clean Air
Act, 42 U.S.C. 7401, et seq., as amended to January 1, 1992, and that is not required to hold an air
quality permit from the department as of January 1, 1992, the board may, as a condition of continued
operation, require by rules promulgated pursuant to chapter 1-26 that the owner or operator of the
source pay the annual fee provided for in this section. Nothing in this section allows the department
to charge any one source of air contaminants more than one annual fee that is designed to cover the
costs identified in this section. The department shall give written notice of the amount of the fee to
be assessed and the basis for the assessment under this section to the owner or operator of the air
contaminant source. The fee levied in this section is in addition to all other fees and taxes levied by
law.
Source: SL 1992, ch 254, § 73.
34A-1-58.1 Ethanol production plants--Application and annual fees.
34A-1-58.1.
Ethanol production plants--Application and annual fees.
Ethanol production
plants are exempt from the fees established in § 34A-1-58, and, in lieu thereof, are subject to the fees
established by this section. Concurrent with the submittal of a permit application pursuant to this
chapter, the applicant for an air quality permit for an ethanol production plant shall submit to the
department an application fee of one thousand dollars. In addition, the owner or operator of an
ethanol production plant shall submit to the department an annual fee for the duration of the air
quality permit. The annual fee shall consist of an administrative fee of one thousand dollars and an
emissions fee in the amount of forty dollars per ton of total suspended particulate matter, sulfur
dioxide, nitrogen oxide, volatile organic compounds, and hazardous air pollutants emitted to the air
by the ethanol production plant during the previous calendar year. The department shall give written
notice of the amount of the fee to be assessed and the basis for the assessment under this section to
the owner or operator of the ethanol production plant by June first of each calendar year. The annual
fee shall accrue on July first of the year after the permit is issued and annually thereafter. The annual
fee is due and payable by July thirty-first and shall be remitted to the Department of Revenue and
Regulation along with such forms as may be prescribed by the secretary of revenue and regulation
in rules promulgated pursuant to chapter 1-26. The fees shall be administered and used by the
department in the same manner as prescribed for other fees established in this chapter.
Source: SL 2007, ch 202, § 1.
34A-1-59 Establishment of air quality subfund--Source of subfund--Administration--Expenditures--Une...
34A-1-59.
Establishment of air quality subfund--Source of subfund--Administration--Expenditures--Unexpended funds.
There is hereby established in the environmental fee fund created
in § 1-40-30, the air quality subfund. This subfund shall consist of moneys from public and private
sources including legislative appropriations, federal grants, gifts, and fees received pursuant to
§ 34A-1-58. The subfund shall be maintained separately and be administered by the department in
order to defray the expenses of all activities associated with administering the air quality permit
program. Expenditures from the subfund shall be appropriated through the normal budget process.
Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1992, ch 254, § 74.
34A-1-60 Obligation to pay fee imposed on regular air contaminant--Date due.
34A-1-60.
Obligation to pay fee imposed on regular air contaminant--Date due.
The
obligation to pay the annual fee imposed by § 34A-1-58 is upon the owner or operator of a regulated
air contaminant source and shall accrue on July first for all facilities. The fee is due and payable by
July thirty-first and shall be remitted to the Department of Revenue and Regulation along with such
forms as may be prescribed by the secretary of revenue and regulation in rules promulgated pursuant
to chapter 1-26.
Source: SL 1992, ch 254, § 75; SL 1993, ch 257, § 7; SL 2003, ch 272, § 82.
34A-1-61 Permit revocation, modification, or suspension--Fees.
34A-1-61.
Permit revocation, modification, or suspension--Fees.
Any permit issued pursuant
to this chapter may be revoked, modified, or suspended, in whole or in part, during its term for cause,
including the following:
(1)
Violation of any condition of the permit;
(2)
Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; or
(3)
Change in any condition that requires either a temporary or permanent reduction or
elimination of the permitted emissions.
Source: SL 1992, ch 254, § 93.
34A-1-62 Additional penalty for knowingly violating provisions of this chapter.
34A-1-62.
Additional penalty for knowingly violating provisions of this chapter.
In addition
to any other civil or criminal penalty imposed by this chapter, any person who knowingly violates
any applicable requirement, any permit condition, or any fee or filing requirement of this chapter,
or who knowingly makes any false material statement, representation, or certification in any form,
in any notice or report required by a permit, or who knowingly renders inaccurate any required
monitoring device or method is guilty of a Class 1 misdemeanor and, notwithstanding the maximum
penalties provided by § 22-6-2, is subject to a criminal fine in a maximum amount of ten thousand
dollars per day per violation.
Source: SL 1995, ch 203, § 4.
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