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34A-11 HAZARDOUS WASTE MANAGEMENT
CHAPTER 34A-11

HAZARDOUS WASTE MANAGEMENT

34A-11-1      Public policy.
34A-11-1.1      Repealed.
34A-11-2      Definitions.
34A-11-3      Department designated as state agency under federal law.
34A-11-4      Functions of department and board.
34A-11-4.1      Executed.
34A-11-5      Cooperation with other agencies and groups.
34A-11-6      Acceptance of loans and grants.
34A-11-7      Employment of personnel.
34A-11-8      Rules identifying characteristics and listing hazardous wastes.
34A-11-9      Promulgation of rules governing hazardous wastes--Civil penalty for violation.
34A-11-9.1 to 34A-11-9.3.      Transferred.
34A-11-10      Notification of hazardous waste activity required--Civil penalty for violation.
34A-11-11      Complaint alleging violation--Investigation--Report--Enforcement action.
34A-11-12      Facility permits required--Issuance, modification, revocation, suspension, or denial--Term--Civil penalty for violation.
34A-11-12.1      Fees for applications, amendments, and renewals--Costs assessed--Schedule of costs and fees.
34A-11-13      Application for permits--Rules--Hearings.
34A-11-14      Terms and conditions of permits--Civil penalty for violation.
34A-11-15      Revocation, modification, or suspension of permit--Grounds.
34A-11-16      Inspection of facilities and records--Monitoring equipment--Reports.
34A-11-16.1      Annual fee for inspection and monitoring.
34A-11-17      Notice and order for correction of violation.
34A-11-18      Hearing on violation--Time for request--Notice--Action by board.
34A-11-19      Circuit court action against violator--Injunction.
34A-11-20      Repealed.
34A-11-21      Violations classified as felonies.
34A-11-22      Public access to information--Confidential information excepted--Disclosure of protected information as misdemeanor.
34A-11-23      Other rights to abate nuisances and pollution unaffected.
34A-11-24      Hazardous waste revolving fund--Administration--Use of funds.
34A-11-25      Disposal fee levied by state--Records.
34A-11-26      County or municipal disposal fee--Distribution of fee shares.


34A-11-1 Public policy.
     34A-11-1.   Public policy. 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. It is the purpose of this chapter to enhance this public policy through a comprehensive regulatory program of hazardous waste management and to facilitate cooperation and coordination in that effort with federal, state, and local agencies.

Source: SL 1983, ch 262, § 1; SL 1984, ch 243, § 8; SL 1987, ch 260, § 1.


34A-11-1.1 Repealed by SL 2012, ch 215, § 32.
     34A-11-1.1.   Repealed by SL 2012, ch 215, § 32.


34A-11-2 Definitions.
     34A-11-2.   Definitions. Terms as used in this chapter mean:
             (1)      "Board," the Board of Minerals and Environment;
             (2)      "Department," the Department of Environment and Natural Resources;
             (3)      "Disposal," the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land, air, or water so that such hazardous waste or any constituent thereof may enter the environment, or be emitted into air, or discharged into any waters, including groundwaters;
             (4)      "Hazardous waste," a solid waste and combination of solid wastes, as defined in subdivision 34A-6-1.3(17), which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed but does not include radioactive materials regulated pursuant to chapter 34-21;
             (5)      "Hazardous waste management," the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous waste;
             (6)      "Hazardous waste management facility," any facility for the collection, source separation, storage, transportation, transfer, processing, treatment, recovery, or disposal of hazardous wastes, whether such facility is associated with facilities generating such wastes or otherwise;
             (7)      "Manifest," the form used for identifying the quantity, composition, and the origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage;
             (8)      "Person," any individual, partnership, limited liability company, firm, association, municipality, public or private corporation, subdivision, or agency of the state or the United States government, trust, estate, interstate body, or any other legal entity;
             (9)      "Secretary," secretary of the Department of Environment and Natural Resources;
             (10)      "Storage," the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste;
             (11)      "Treatment," any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to render such waste less hazardous or nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it less hazardous or nonhazardous.

Source: SL 1983, ch 262, § 2; SL 1984, ch 243, § 9; SL 1987, ch 29, § 21; SL 1989, ch. 306, §§ 1, 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 71.


34A-11-3 Department designated as state agency under federal law.
     34A-11-3.   Department designated as state agency under federal law. The Department of Environment and Natural Resources is designated as the agency for all state purposes of the Federal Resource Conservation Recovery Act as amended to January 1, 2011, and the Hazardous and Solid Waste Amendments of 1984 (Public Law 98-616), as amended to January 1, 2011.

Source: SL 1983, ch 262, § 3; SL 1986, ch 295, § 31; SL 2011, ch 165, § 145.


34A-11-4 Functions of department and board.
     34A-11-4.   Functions of department and board. The Department of Environment and Natural Resources shall perform all the functions of the former public health advisory committee, the former state health officer, and the Department of Health with respect to the control of hazardous waste management pursuant to this chapter. However, the Board of Minerals and Environment shall perform any quasi-legislative, quasi-judicial, advisory, and special budgetary functions.

Source: SL 1983, ch 262, § 4.


34A-11-4.1
     34A-11-4.1.   Executed.


34A-11-5 Cooperation with other agencies and groups.
     34A-11-5.   Cooperation with other agencies and groups. The Department of Environment and Natural Resources may advise, consult, and cooperate with other agencies of the state, other states, the federal government, and affected groups and industries in the formulation of plans for, and implementation of, hazardous waste management.

Source: SL 1983, ch 262, § 5.


34A-11-6 Acceptance of loans and grants.
     34A-11-6.   Acceptance of loans and grants. The Department of Environment and Natural Resources may accept and administer any loans and grants from the federal government or other sources which are made available to the Department for Hazardous Waste Management.

Source: SL 1983, ch 262, § 6.


34A-11-7 Employment of personnel.
     34A-11-7.   Employment of personnel. In accordance with the laws of the state, the Department of Environment and Natural Resources may employ, compensate, and prescribe the powers and duties of those persons necessary to execute the provisions of this chapter.

Source: SL 1983, ch 262, § 7.


34A-11-8 Rules identifying characteristics and listing hazardous wastes.
     34A-11-8.   Rules identifying characteristics and listing hazardous wastes. The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, which identify the characteristics of hazardous wastes considering the toxicity, persistence, degradability in nature, potential for accumulation in tissue, flammability, corrosiveness, reactivity, and related factors. The board shall compile a list of wastes it considers hazardous and may revise that list from time to time.

Source: SL 1983, ch 262, § 8; SL 1984, ch 243, § 10.


34A-11-9 Promulgation of rules governing hazardous wastes--Civil penalty for violation.
     34A-11-9.   Promulgation of rules governing hazardous wastes--Civil penalty for violation. The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, governing the generation, transportation, treatment, storage, and disposal of hazardous wastes necessary to execute the provisions of this chapter. The rules may include ownership, location, design, construction, operation, and maintenance of hazardous waste management facilities, financial responsibility, personnel training, record keeping, reporting, labeling, monitoring, container use, inspections, closure, post-closure procedures and requirements, contingency planning, enforcement, and use of a manifest system to assure all hazardous wastes are designated for treatment, storage, or disposal at a permitted hazardous waste management facility. The board may promulgate rules pursuant to chapter 1-26 that are consistent with the Hazardous Materials Transportation Act (88 Stat. 2156; 49 U.S.C. § 1801 et seq.), as amended to January 1, 2011, and the regulations adopted pursuant to that Act.
     A violation of the rules adopted 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 of this state, or both.

Source: SL 1983, ch 262, § 9; SL 1984, ch 243, § 11; SL 1992, ch 158, § 51; SL 2011, ch 165, § 146.


34A-11-9.1
     34A-11-9.1 to 34A-11-9.3.   Transferred to §§ 20-9-29 to 20-9-31.


34A-11-10 Notification of hazardous waste activity required--Civil penalty for violation.
     34A-11-10.   Notification of hazardous waste activity required--Civil penalty for violation. Any person generating, transporting, treating, storing, or disposing of a hazardous waste shall file with the secretary of environment and natural resources a notification of hazardous waste activities. The notification shall be in accordance with rules promulgated pursuant to chapter 1-26 by the Board of Minerals and Environment. No hazardous waste subject to this chapter may be transported, treated, stored, or disposed of unless notification has been given as required in this chapter.
     A violation of this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.

Source: SL 1983, ch 262, § 10; SL 1992, ch 158, § 52; SL 1993, ch 256, § 36; SL 2005, ch 10, § 27.


34A-11-11 Complaint alleging violation--Investigation--Report--Enforcement action.
     34A-11-11.   Complaint alleging violation--Investigation--Report--Enforcement action. Any person may file a complaint with the secretary of environment and natural resources regarding a violation of this chapter. The secretary may conduct an investigation of the alleged violation and make a written report of the investigation to the person. If the secretary determines that a violation has occurred, the secretary may take whatever enforcement action he or she considers appropriate.

Source: SL 1983, ch 262, § 11; SL 2005, ch 10, § 28; SL 2011, ch 165, § 147.


34A-11-12 Facility permits required--Issuance, modification, revocation, suspension, or denial--Term...
     34A-11-12.   Facility permits required--Issuance, modification, revocation, suspension, or denial--Term--Civil penalty for violation. No hazardous waste treatment, storage, or disposal management facility may be owned, constructed, modified, or operated except in accordance with a permit issued by the Board of Minerals and Environment. A violation of this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
     The board may issue, modify, suspend, revoke, or deny permits, in accordance with chapter 1-26, for the ownership, construction, modification, and operation of hazardous waste treatment, storage, and disposal management facilities. 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.

Source: SL 1983, ch 262, § 12; SL 1990, ch 289, § 1; SL 1992, ch 158, § 53.


34A-11-12.1 Fees for applications, amendments, and renewals--Costs assessed--Schedule of costs and fee...
     34A-11-12.1.   Fees for applications, amendments, and renewals--Costs assessed--Schedule of costs and fees. The department shall assess an initial application fee of fifty thousand dollars for the processing of all hazardous waste disposal facility applications. The department shall assess a fee of twenty-five thousand dollars for the processing of all hazardous waste disposal facility amendments and renewals. The applicant shall pay the fee upon the filing of an application, amendment, or renewal for a hazardous waste disposal facility. In addition to this fee, the department may assess the applicant those amounts in excess of the initial filing fee for expenses associated with processing the application, amendment, or renewal. The department shall provide the applicant with an itemized statement of all costs associated with the processing of the application, amendment, or renewal. The applicant shall submit payment of all costs in excess of the initial fee within thirty days of the receipt of the statement. The combined initial fee and additional expenses assessed an applicant may not exceed one hundred seventy-five thousand dollars. All fees assessed under this section shall be payable to the Department of Environment and Natural Resources for deposit in the hazardous waste revolving fund established pursuant to § 34A-11-24. The incineration or thermal destruction of hazardous waste shall be considered disposal for the purpose of this section.

Source: SL 1990, ch 289, § 2; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.


34A-11-13 Application for permits--Rules--Hearings.
     34A-11-13.   Application for permits--Rules--Hearings. The Board of Minerals and Environment may promulgate rules, pursuant to chapter 1-26, governing the application for permits to own, construct, modify, or operate a hazardous waste treatment, storage, or disposal facility. The rules may require the submission of plans, specifications, and other information as may be necessary to execute the provisions of this chapter. The board may promulgate rules allowing the issuance or denial of a permit by the Department of Environment and Natural Resources following notice and opportunity for a hearing before the board on the department's proposed decision.

Source: SL 1983, ch 262, § 13.


34A-11-14 Terms and conditions of permits--Civil penalty for violation.
     34A-11-14.   Terms and conditions of permits--Civil penalty for violation. Any permit issued pursuant to this chapter may prescribe terms and conditions for record keeping, reporting, monitoring, sampling, inspections, compliance schedules, and such other terms and conditions as may be necessary to ensure compliance with this chapter and rules adopted pursuant to this chapter. A violation of the terms of the permit is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.

Source: SL 1983, ch 262, § 14; SL 1992, ch 158, § 54.


34A-11-15 Revocation, modification, or suspension of permit--Grounds.
     34A-11-15.   Revocation, modification, or suspension of permit--Grounds. 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 misrepresenting or failing to disclose fully all relevant facts; or
             (3)      A change in condition or discovery of new information which requires a temporary or permanent reduction, or termination of the permitted activity.

Source: SL 1983, ch 262, § 15; SL 2011, ch 165, § 148.


34A-11-16 Inspection of facilities and records--Monitoring equipment--Reports.
     34A-11-16.   Inspection of facilities and records--Monitoring equipment--Reports. The secretary of environment and natural resources may:
             (1)      Enter and have access at reasonable times to any facility used for generation, transportation, treatment, storage, or disposal of hazardous waste and monitoring equipment related thereto;
             (2)      Inspect and obtain samples from any person of any hazardous wastes or suspected hazardous wastes, and of any containers or labeling for such wastes; a receipt for any samples and a copy of any analysis performed shall be provided to the owner or operator;
             (3)      Inspect and copy any records relating to any known or suspected or hazardous wastes;
             (4)      Require the installation and use of monitoring equipment or methods necessary to ensure compliance with this chapter;
             (5)      Require the preparation and submission of reports or other information by any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes.

Source: SL 1983, ch 262, § 16; SL 2005, ch 10, § 29.


34A-11-16.1 Annual fee for inspection and monitoring.
     34A-11-16.1.   Annual fee for inspection and monitoring. The department shall assess an annual fee of twenty-five thousand dollars for the inspection, investigation, and monitoring of each hazardous waste disposal facility disposing of more than five hundred tons of hazardous waste per annum. The fee shall be payable to the department one year from the date of the issuance of the permit of the facility and on that same date each year thereafter until operations under the permit cease and the facility is properly closed with the exception of those years where a facility has made application for renewal and paid the required renewal application fee. The department shall deposit the fee in the hazardous waste revolving fund established pursuant to § 34A-11-24. The incineration or thermal destruction of hazardous wastes shall be considered disposal for the purpose of this section.

Source: SL 1990, ch 289, § 3.


34A-11-17 Notice and order for correction of violation.
     34A-11-17.   Notice and order for correction of violation. If the secretary of environment and natural resources determines that a person is in violation of this chapter, or any rule promulgated pursuant to this chapter, the secretary may cause written notice and an order to be served personally or by mail upon the alleged violator or the alleged violator's agent. The notice and order shall state the statute or rule allegedly violated, the pertinent facts, the nature of any corrective action that may be required and the time within which the action is to be taken. A notice and order may include a suspension or revocation of a permit issued under this chapter. For purposes of this chapter, service by mail is considered complete on the date of mailing.

Source: SL 1983, ch 262, § 17; SL 2005, ch 10, § 30; SL 2011, ch 165, § 149.


34A-11-18 Hearing on violation--Time for request--Notice--Action by board.
     34A-11-18.   Hearing on violation--Time for request--Notice--Action by board. The notice of violation and order is final thirty days after the order is served unless the person named submits a written request for hearing to the secretary of environment and natural resources before the thirtieth day. If a request is submitted by mail, it is considered to have been submitted on the date of mailing. The secretary shall notify the Board of Minerals and Environment of receipt of a request for a hearing. The board shall conduct a public hearing. Notice of the hearing consistent with § 1-26-17 shall be sent to the alleged violator and published in a newspaper of general circulation in the county where the violation is alleged to have occurred. The board may affirm, reverse, or modify the notice of violation or order following a contested case hearing.

Source: SL 1983, ch 262, § 18; SL 2005, ch 10, § 31.


34A-11-19 Circuit court action against violator--Injunction.
     34A-11-19.   Circuit court action against violator--Injunction. In lieu of, or in addition to, issuance of a notice of violation and order, the secretary of water and natural resources may bring an action in the circuit court of the county where the violation occurred, or is threatening to occur, for injunctive or other appropriate relief.

Source: SL 1983, ch 262, § 19.


34A-11-20
     34A-11-20.   Repealed by SL 1992, ch 158, § 55.


34A-11-21 Violations classified as felonies.
     34A-11-21.   Violations classified as felonies. Any person who knowingly transports a hazardous waste to an unpermitted facility; who knowingly treats, stores, or disposes of hazardous waste without a permit or in violation of a permit term or condition; or who makes any false statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained or used for purposes of ensuring compliance with this chapter is guilty of a Class 4 felony.

Source: SL 1983, ch 262, § 21.


34A-11-22 Public access to information--Confidential information excepted--Disclosure of protected i...
     34A-11-22.   Public access to information--Confidential information excepted--Disclosure of protected information as misdemeanor. Any records, reports, or information obtained from any person under this chapter shall be available to the public. If the secretary of environment and natural resources determines that a record, report, or information reveals methods or processes entitled to protection as trade secrets, the secretary may consider such record, report, or information confidential. However, the record, report, or information may be disclosed to other officers, employees, or authorized representatives of the state or federal government concerned with executing the provisions of this chapter, or if relevant, in any proceeding under this chapter. Any person who knowingly and willfully divulges or discloses any information entitled to protection under this section is guilty of a Class 1 misdemeanor.

Source: SL 1983, ch 262, § 22; SL 2005, ch 10, § 32.


34A-11-23 Other rights to abate nuisances and pollution unaffected.
     34A-11-23.   Other rights to abate nuisances and pollution unaffected. Nothing in this chapter abridges or alters any rights of action or remedies in equity or under the common law or statutory law, criminal or civil. Nothing in this chapter may be construed as estopping any person in the exercise of the person's rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.

Source: SL 1983, ch 262, § 23; SL 2011, ch 165, § 150.


34A-11-24 Hazardous waste revolving fund--Administration--Use of funds.
     34A-11-24.   Hazardous waste revolving fund--Administration--Use of funds. There is hereby established in the state treasury a special revolving fund to be designated as the hazardous waste revolving fund. This fund shall consist of all moneys from all lawful public and private sources including legislative appropriations, federal grants, gifts, fees received pursuant to §§ 34A-11-12.1 and 34A-11-16.1 and interest on investments made on money in the fund. The fund shall be maintained separately and be administered by the Department of Environment and Natural Resources in order to retain consulting and legal services and to defray such other expenses as are reasonable and necessary in order to process applications for hazardous waste disposal facilities and to monitor their operations. Fees not expended on a facilities application or monitoring shall remain a part of the fund but may not be expended for any purpose except the investigation and inspection of hazardous waste management facilities or the processing of hazardous waste management facilities permit applications or modifications. Moneys may be deposited in this fund on an ongoing basis and this fund shall constitute a continuing appropriation of these moneys to be expended for the purposes of §§ 34A-11-12.1 and 34A-11-16.1.

Source: SL 1990, ch 289, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.


34A-11-25 Disposal fee levied by state--Records.
     34A-11-25.   Disposal fee levied by state--Records. Because of the additional environmental risks attending hazardous waste disposal facilities, a hazardous waste disposal fee of fifty dollars per ton or part thereof of any hazardous waste is hereby levied and imposed upon the disposal of hazardous waste at any hazardous waste disposal facility permitted under this chapter, excluding the disposal of hazardous waste disposed of in a process of energy recovery. The fee imposed by this section shall be in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of a hazardous waste disposal facility. The incineration or thermal destruction of hazardous waste shall be considered disposal for the purpose of this fee.
     The hazardous waste disposal fee imposed by this section shall be paid by the owner of the hazardous waste disposal facility and remitted to the state treasury. The obligation of the owner to pay the fee accrues at the time hazardous waste is disposed of at a hazardous waste disposal facility. The fee imposed by this section shall be payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on such form or forms as may be prescribed by the secretary of revenue. Each owner of a facility who is required to pay the fee imposed by this section shall keep complete and accurate records in such form as the board or the secretary of revenue, by rules promulgated pursuant to chapter 1-26, may require.
     Fees collected under this section shall be deposited in the South Dakota environment and water resources trust fund established pursuant to § 46A-1-82.

Source: SL 1990, ch 289, § 5.


34A-11-26 County or municipal disposal fee--Distribution of fee shares.
     34A-11-26.   County or municipal disposal fee--Distribution of fee shares. In addition to the hazardous waste disposal fee assessed by the state under § 34A-11-25, a county or municipality may impose and levy a hazardous waste disposal fee upon the disposal of hazardous waste at any hazardous waste disposal facility within, or operated under, its jurisdiction excluding those facilities disposing of hazardous waste in a process of energy recovery. Fees imposed under this section are in addition to all other fees and taxes levied by law. The incineration or thermal destruction of hazardous waste is considered disposal for the purpose of this fee.
     The fee imposed by this section shall be paid by the owner of the hazardous waste disposal facility and remitted to the county or municipal treasurer. The obligation of the owner to pay the fee accrues at the time hazardous waste is disposed of at a hazardous waste disposal facility. The owner of the facility may collect these fees from persons disposing of hazardous waste at the owner's facility. The fee imposed by this section is payable on or before the fifteenth day of the month next succeeding the month in which the fee accrued together with a return on forms prescribed by the county or municipal treasurer. Each person required to pay the fee imposed by this section shall keep complete and accurate records in a form required by the county or municipal treasurer.
     The county or municipality may distribute shares of this fee to the municipalities and school districts within its boundary as it deems appropriate considering the location of the facility and the impacts on the representation jurisdiction.

Source: SL 1990, ch 289, § 6; SL 2011, ch 165, § 151.


Title 34A

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