ARSD Article 74:32 — PETROLEUM INSPECTION AND RELEASE COMPENSATION

AGRICULTURE & NATURAL RESOURCES AGRICULTURE & NATURAL RESOURCES

Chapter 74:32:01 General provisions

ARSD 74:32:01:01 Definitions

Terms defined in SDCL 34A-13-1 have the same meaning when used in this article except as otherwise indicated. In addition, terms used in this article mean:

(1) "Board," the Petroleum Release Compensation Board or its authorized representative;

(2) "Bodily injury," bodily injury, sickness, or disease sustained by an individual, including death resulting from any of these at any time;

(3) "Claim," the demand for money or services, including the service of suit made upon the covered party;

(4) "Cleanup," necessary and reasonable expenses incurred by a covered party for the removal or neutralization of petroleum, including necessary and reasonable costs, charges, and expenses incurred by geotechnical or environmental firms and their personnel to investigate, assess, remediate, or monitor the effects of any covered release;

(5) "Covered party," a responsible person, an employee of a responsible person, or a responsible person's agent who has custody of a responsible person's real property;

(6) "Defense costs," reasonable fees charged by the secretary's attorney, court costs, prejudgment interest, postjudgment interest, and other reasonable fees, costs, and expenses attributed to the secretary's investigation, defense, or appeal of a claim;

(7) "Fiscal year," the period of time beginning July 1 and ending June 30;

(8) "Legal obligation," an obligation forming the basis of a judgment against the covered party in a court of applicable jurisdiction;

(9) "Pathway and fate analysis," a study conducted to determine the mechanisms and routes by which contaminants may enter a specific environment, the specific environments potentially affected by the contaminants, and the full final disposition and chemical form of the contaminants in those environments;

(10) "Property damage," physical injury to, destruction of, or contamination of tangible property, including all resulting loss of use of that property, proximately caused by a release; or loss of use of tangible property that is not physically injured, destroyed, or contaminated, but has been evacuated, withdrawn from use, or rendered inaccessible as a proximate result of a release;

(11) "Risk assessment," a scientific evaluation of the properties of petroleum products and the conditions of environmental and human exposure to petroleum products in order to ascertain the likelihood of adverse effects to the environment and exposed humans and the nature of such effects;

(12) "Secretary," the secretary of the Department of Agriculture and Natural Resources;

(13) Suit," a civil proceeding filed in a court of applicable jurisdiction in which compensatory damages are alleged because of bodily injury or property damage to which the reimbursement provisions of this chapter and SDCL chapter 34A-13 apply, including an arbitration proceeding alleging such damages, to which a covered party must submit or submit with the secretary's consent;

(14) "Waste facility," any site to which petroleum-contaminated material is consigned for delivery or delivered for storage, disposal, processing, or treatment.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997; 30 SDR 58, effective November 5, 2003; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 1-47-12, 34A-13-1, 34A-13-13, 34A-13-16, 34A-13-40, 34A-13-42.

ARSD 74:32:01:02 Review of claims -- Determination of cash balance in fund

The director shall determine by Thursday of each week all claims for reimbursement that are payable from the fund that week. A claim is determined to be payable when the director approves the proposed findings and establishes the amount of payment. By Thursday of each week, the director shall determine whether there are sufficient moneys available in the fund to cover all claims to be paid that week. If the director determines that the claims to be paid that week would cause the cash balance of the fund to drop below $100,000, the director shall proceed as provided in § 74:32:01:03. If Thursday of any week falls on a state holiday, the actions required by this section shall occur on the next full working day.

History

• Source: 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-42.

ARSD 74:32:01:03 Prorating of claims

If the director determines there are not sufficient moneys to fully pay all claims payable and to maintain a cash balance of at least $100,000 for any week, the director shall prorate all claims determined to be payable for that week on a dollar-for-dollar basis so that each reimbursement claim is reduced by the same percentage. The percentage of reduction shall equal the amount the shortfall in the fund (fund balance less $100,000 less claims to be paid for the week) represents to the total amount of claims determined to be payable for the week. The director shall notify each responsible person of the amount yet to be paid and the estimated date of payment. If deferring payment of all claims approved for payment in any given week would, in the judgment of the director, result in full payment to the covered parties not later than 60 days after all affected covered parties would have received full payment through proration of their claims as provided by this section, the director may withhold all payment on all claims determined to be payable for that week until the cash balance is sufficient to pay the entire amount approved on any given week. Unpaid amounts from prior weeks deferred or prorated under this section, in the order they were determined payable by the director, shall receive priority over unpaid amounts from subsequent weeks and claims subsequently determined to be payable.

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-13, 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-42.

Chapter 74:32:02 Fee collection

ARSD 74:32:02:01 Fee collection

The petroleum release compensation and tank inspection fee imposed by SDCL 34A-13-20 shall be collected with the fuel excise tax pursuant to SDCL 10-47B-5 to 10-47B-10, inclusive, and SDCL 10-47B-13. The fee is delinquent at the same time that fuel taxes become delinquent pursuant to SDCL 10-47B-29.

History

• Source: 15 SDR 72, effective November 17, 1988; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-22.
• Law Implemented: SDCL 34A-13-19 to 34A-13-22.

ARSD 74:32:02:02 Fee assessment calculation -- Form

The Department of Revenue and Regulation shall assess and collect the fee at the rate of two cents a gallon. The fee must be calculated on a form provided by the Department of Revenue and Regulation.

History

• Source: 15 SDR 72, effective November 17, 1988; 23 SDR 220, effective June 25, 1997; 30 SDR 58, effective November 5, 2003.
• General Authority: SDCL 34A-13-16, 34A-13-22.
• Law Implemented: SDCL 34A-13-19 to 34A-13-22.

ARSD 74:32:02:03 Repealed

Notice to collect or cease collection of fee.** Repealed.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; repealed, 23 SDR 220, effective June 25, 1997.

ARSD 74:32:02:04 Accounting of payments

Accounting of payments.** The Department of Revenue and Regulation shall provide the director with a monthly accounting of fee payments made and a list of delinquent payments.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 30 SDR 58, effective November 5, 2003.
• General Authority: SDCL 34A-13-16, 34A-13-22.
• Law Implemented: SDCL 34A-13-15, 34A-13-19 to 34A-13-22.

Chapter 74:32:03 Application for reimbursement for corrective action

ARSD 74:32:03:01 Application for reimbursement

Upon receiving notice of a spill or release, the director shall send application forms to the covered party. The application forms must be signed by the covered party or an agent of the covered party and contain the following information:

(1) The name, address, and telephone number of the covered party;

(2) The name, address, and telephone number of the contact person;

(3) The name and address of the operator;

(4) The street or highway description of the petroleum release location;

(5) The legal description of the release location;

(6) The motor fuel dealer or special fuel distributor tax number;

(7) The substance released;

(8) The date the spill or release was discovered;

(9) A complete narrative description of the spill or release;

(10) A completed subrogation assignment as provided by the director and signed by the covered party or the agent of the covered party; and

(11) A completed form W-9 from the United States Internal Revenue Service signed by the covered party or the agent of the covered party.

Reimbursement from the fund may not be made unless a complete application is returned to the director. The covered party shall certify to the truthfulness of all information on the application.

Cross-Reference: Definition of terms, SDCL 34A-13-1(12).

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-15, 34A-13-16, 34A-13-29.

ARSD 74:32:03:02 Investigation of application

The director or an agent of the director shall investigate the spill or release information and verify the information on the completed application forms pursuant to this chapter and SDCL 34A-13-29.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-29.
• Law Implemented: SDCL 34A-13-16, 34A-13-29.

ARSD 74:32:03:02.01 Cooperation required by covered party

Any covered party must cooperate with the director in the investigation or corrective action taken and must assist the director in the enforcement of any right against any person who may be held liable for reimbursed cleanup costs.

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-3, 34A-13-7, 34A-13-8, 34A-13-9, 34A-13-17, 34A-13-29, 34A-13-41, 34A-13-42.

ARSD 74:32:03:03 Transferred

Transferred to § 74:32:03:06.**

ARSD 74:32:03:04 Procedure for determining eligible expenses

When determining the amount and type of expenses eligible for reimbursement from the fund, the director shall:

(1) Review the potential eligible expenses for compliance with this chapter;

(2) Review the written report of the agent investigating the claim;

(3) Review written proof that payment of the deductible as determined by the secretary was made by the covered party; and

(4) Review documentation of paid or unpaid expenses that exceed the deductible required of a covered party.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-8.1, 34A-13-8.2, 34A-13-8.5, 34A-13-16, 34A-13-31.

ARSD 74:32:03:05 Repealed

Procedures for determining eligibility for waiving required payment amount.** Repealed.

History

• Source: 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991; repealed, 23 SDR 220, effective June 25, 1997.

ARSD 74:32:03:06 Eligible expenses

Only expenses directly related to the cleanup are eligible for partial reimbursement. Lost income is not a reimbursable expense. The following expenses are reimbursable if the director determines them to qualify under SDCL 34A-13-31:

(1) Labor;

(2) Testing;

(3) Use of machinery;

(4) Materials and supplies;

(5) Professional services authorized by the director;

(6) Costs incurred by order of federal, state, or local government; and

(7) Any other expenses the board finds to be reasonable and necessary to remediate a petroleum spill or release.

History

• Source: 15 SDR 72, effective November 17, 1988; transferred from § 74:32:03:03, 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-2, 34A-13-15, 34A-13-16, 34A-13-31.

ARSD 74:32:03:06.01 Exclusion from reimbursement for cleanup costs

In addition to the exclusions allowed in SDCL 34A-13, the reimbursement for cleanup costs authorized by this chapter does not apply to and may not be provided for the following:

(1) The upgrading or repair of tanks or the replacement of their contents;

(2) The upgrading or repair of piping, connections, and valves used in conjunction with subdivision (1) of this section;

(3) Backfilling done in conjunction with subdivision (1) or (2) of this section;

(4) Testing for a suspected release where no cleanup is required by state regulation;

(5) Costs associated with preparing a claim;

(6) Costs associated with property damage incurred by the responsible person or a third party except those costs authorized for reimbursement under chapter 74:32:06;

(7) A release which was expected or intended from the standpoint of the covered party except for such releases ordered by governmental regulatory entities or law enforcement agencies having jurisdiction to order such a release;

(8) A release at a waste facility;

(9) A release attributable to a covered party's willful or deliberate failure to comply with an applicable statute, regulation, ordinance, directive, or order relating to the protection of the environment and promulgated by a governmental body having jurisdiction over the covered party;

(10) Fines or penalties imposed upon the responsible person;

(11) The covered party has failed to comply with any provisions of SDCL chapters 34A-13 and 34A-14 or the rules promulgated under them.

History

• Source: 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-9, 34A-13-9.1, 34A-13-25, 34A-13-28, 34A-13-29, 34A-13-41, 34A-13-45, 34A-13-46.

ARSD 74:32:03:07 Review of contracts for professional environmental consulting services required

Expenses for professional environmental consulting services are eligible for reimbursement only if the scope of work, cost schedule, estimate, and signature page of the proposed contract for such services are submitted by the covered party or the agent of the covered party to the director for review and approval and the scope of work, cost schedule, estimate, and signature page of the contract comply with § 74:32:03:09. The director shall determine if the expenses are necessary and reasonable and may require changes in the contract before approving it.

History

• Source: 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-15, 34A-13-16, 34A-13-31.

ARSD 74:32:03:08 Contracts for professional environmental consulting services authorized

The director may contract for professional environmental consulting services to conduct release investigations, prepare corrective action plans, design remedial systems, install and operate remedial systems, and coordinate remedial activities. If the director has contracted for professional environmental consulting services pursuant to this section, no expenses for professional environmental services incurred by a covered party at a release site are eligible for reimbursement unless such expenses are approved in writing by the director.

History

• Source: 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-6, 34A-13-16, 34A-13-27, 34A-13-31.

ARSD 74:32:03:09 Contracts for professional environmental consulting services -- Contents

Expenses incurred by a covered party or the director under a contract or contracts for professional environmental consulting services are eligible for reimbursement only if the contract includes, at a minimum, the following:

(1) A description of the project location, including street address;

(2) A description of work to be performed;

(3) A description of the equipment to be used;

(4) A proposed date for commencing work;

(5) The name of the principal in charge of the project and a list of the individuals who will be primarily responsible for conducting the work; and

(6) A detailed cost schedule which includes hourly rates for all individuals working on the project and all other costs, including laboratory rates, equipment fees, mileage, per diem costs, and estimates for the cost of services described in this section.

History

• Source: 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-15, 34A-13-16, 34A-13-27.

ARSD 74:32:03:10 Assessment workplan required for reimbursement

A covered party, the agent of the covered party, or those providing professional environmental consulting services under contract with the director shall submit an assessment workplan as required in § 74:32:05:08.01 to the director for approval before incurring any costs for release investigations other than those incurred for emergency response or excavation observation and excavation monitoring. Expenses incurred by a covered party for a release investigation before an assessment workplan has been approved by the director are not eligible for reimbursement unless otherwise authorized by the director.

History

• Source: 17 SDR 94, effective January 6, 1991; 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-15, 34A-13-16, 34A-13-31.

Chapter 74:32:04 Investigation of claims

ARSD 74:32:04:01 Procedure for investigation of claims

After notification of a spill or release, the director or the agent of the director shall investigate the spill or release. The director or agent shall do the following:

(1) Examine the location of the spill or release;

(2) Interview persons for information concerning the spill or release;

(3) Examine records concerning the spill or release, corrective action taken, and any expenses incurred;

(4) Prepare a written report concerning the validity of the claim, including an estimate of the eligible expenses necessary for corrective action; and

(5) Complete other tasks or duties specified by the director.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16.
• Law Implemented: SDCL 34A-13-6, 34A-13-15, 34A-13-16, 34A-13-27.

ARSD 74:32:04:02 Repealed

Qualifications of authorized claims representatives.** Repealed.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; repealed, 23 SDR 220, effective June 25, 1997.

Chapter 74:32:05 Reporting and response procedures

ARSD 74:32:05:01 Reporting of known releases

A responsible person shall immediately report a known release of petroleum products to the department if one of the following conditions exists:

(1) The release may impact surface or ground waters of the state;

(2) The release may cause an immediate danger to human health or safety;

(3) The release is greater than 25 gallons; or

(4) The release is less than 25 gallons but cannot be contained and remedied within 24 hours.

The immediate report shall be telephoned to the department or the Division of Emergency Management as soon as the responsible person becomes aware of the release. Within 48 hours after the release notification the responsible person shall verify the accuracy of any report submitted to the department by the Division of Emergency Management or shall complete the report in writing according to § 74:32:05:04.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:02 Reporting of suspected releases

A responsible person shall report a suspected release to the department within 24 hours after the release is suspected. The report shall comply with the provisions of § 74:32:05:04. A release is suspected when one of the following occurs:

(1) Sampling or monitoring results from release detection devices indicate that a release may have occurred;

(2) Evidence is discovered in the surrounding area that petroleum products are in soils, basements, sewer or utility lines, or nearby surface water; or

(3) Unusual operating conditions are found, such as erratic behavior of product dispensing equipment, the sudden loss of product from tanks, an unexplained presence of water in the tank, or the physical presence of petroleum products of unknown origin on a site.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:03 Director to be notified of confirmed releases

The department shall notify the director of all confirmed petroleum releases.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13, 34A-13-15.

ARSD 74:32:05:04 Release report

Release reports shall provide the following information:

(1) The specific location of the release;

(2) The type and amount of product released;

(3) The responsible person's name, address, and telephone number;

(4) An explanation of any response action that was taken;

(5) The list of agencies notified;

(6) The suspected cause of the release;

(7) The date and time of the release to the extent known; and

(8) The immediate known impacts of the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:05 Immediate response action

Upon the discovery of a release, a responsible person shall perform immediate action to prevent further release of product. Immediate action includes those steps necessary to stop and contain the release, such as the shutting of valves, sealing of holes, removal of product from the tank, containment of lost product, or other actions directed at stemming the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:06 Emergency response action

In situations where immediate danger is present to human health, safety, or the environment, the responsible person shall initiate emergency response action immediately. Direction for emergency response may be obtained from local and state emergency response personnel. Emergency response may take any form necessary to prevent or reduce the threat of danger to human health, safety, or the environment provided such action does not contribute to a deterioration of the existing release situation. Upon resolution of the emergency situation the responsible person shall begin to comply with the procedures set forth in this chapter and submit a summary to the department of the emergency response action taken in a time schedule established by the department for the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:07 Determination of response procedures to be followed -- Notice of violation or order

If the department issues a notice of violation or order under SDCL 34A-13-2 or initiates other administrative or legal proceedings concerning a release, the notice of violation, order, or other administrative or legal proceedings shall determine the procedures to be followed in investigating, containing, and remedying the release. If the department does not issue a notice of violation or an order or pursue other administrative or legal proceedings, response procedures are those contained in §§ 74:32:05:08 to 74:32:05:14, inclusive.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:08 Response action time schedule

The department, after consulting with the director and the responsible person, shall establish a time schedule for each release to accomplish response action to the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:08.01 Assessment workplan required

A covered party or other responsible person or the agent of a covered party or other responsible person shall submit an assessment workplan to the director and the department for approval before initiating a release investigation.

History

• Source: 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-15, 34A-13-31.

ARSD 74:32:05:08.02 Assessment workplan -- Contents

An assessment workplan must contain the following provisions:

(1) A brief summary of the nature of the work to be completed and the sequence of planned activities;

(2) A proposed time schedule for commencing and completing major activities, including the release investigation report;

(3) A written discussion of the rationale for selecting the number and placement of monitoring wells and soil borings;

(4) A written discussion of the rationale for selecting which water and soil samples will be retained for laboratory analysis;

(5) The names of the constituents for which a laboratory analysis is to be performed;

(6) The method used for determining the direction of local groundwater flow;

(7) A brief summary of the quality assurance and quality control plan which will be followed during the release investigation;

(8) A description of all computer models that may be used in the pathway and fate analysis, costs analysis of remedial alternatives, design of remedial alternatives, or risk assessment; and

(9) Other provisions the director or department determine to be necessary for the assessment.

History

• Source: 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-15, 34A-13-31.

ARSD 74:32:05:09 Release investigation

A known or suspected release must be investigated by the responsible person to determine the extent and degree of contamination. The investigation must have the approval of the department prior to implementation and shall include, at a minimum:

(1) Monitoring locations, sampling schedule, and analysis results submission schedule;

(2) A pathway and fate analysis to determine impacts to human health and the environment;

(3) A risk assessment of the impacts of the petroleum products, including both free-floating and dissolved phases of the release;

(4) A determination of the vertical and horizontal extent of the contamination;

(5) Site-specific hydrological and geological data;

(6) The relationship and influence of the site-specific hydrological data to the petroleum products movement; and

(7) Other pertinent data that the department determines is necessary to define a release.

All results and information obtained from a release investigation shall be provided to the department for review within a time schedule established by the department for the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:10 Determination of petroleum contamination concentration levels

The responsible person shall have samples of the petroleum contamination submitted and analyzed at a laboratory capable of using methodologies that result in verifiable values to determine concentration levels. The samples must be taken within the confines of the release site. The results from the testing must be submitted to the department for comparison to established water quality standards and risk-based action levels for soil to evaluate the severity of the release.

Cross-References: Surface water quality standards, ch 74:51:01; Groundwater quality standards, ch 74:54:01.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:11 Department approval of corrective action plan

The responsible person shall submit a corrective action plan for approval by the department in accordance with the time schedule established by the department for the release. The corrective action plan shall contain complete information describing the design and implementation of the proposed corrective action. The corrective action plan shall provide for protection to human health, safety, and the environment.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:11.01 Department review and approval of professional environmental consulting services

Environmental consulting services under contract with the director for the design, installation, and operation of remedial systems and coordination of remedial activities must be reviewed and approved by the department before implementation of these activities.

History

• Source: 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:12 Removal and disposal of visible contamination

All visibly contaminated soil must be removed from the excavation area, stored in accordance with chapter 74:56:05, and disposed of as directed by the department. The responsible person shall submit documentation concerning the extent of the removal and final disposition of the contaminant to the department in accordance with the time schedule established by the department for the release.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:13 Implementation of corrective action plan

The responsible person shall implement a department-approved corrective action plan. If monitoring data or other factors indicate that modifications to the existing corrective action plan are necessary, the responsible person may petition the department to make these changes. Implementation of the modifications may only be made after written permission is granted by the department. The department shall enforce an approved corrective action until the cleanup concentration levels established by the department are met or the responsible person can demonstrate that continued operation of the corrective action would not further reduce the contamination. The responsible person shall obtain written permission from the department prior to cessation of the corrective action.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

ARSD 74:32:05:14 Inspections

Inspections of releases, response actions, and corrective actions shall be made in accordance with chapter 74:50:03.

History

• Source: 15 SDR 72, effective November 17, 1988; 17 SDR 94, effective January 6, 1991.
• General Authority: SDCL 34A-13-5.
• Law Implemented: SDCL 34A-13-5, 34A-13-13.

Chapter 74:32:06 Reimbursement for third-party claims

ARSD 74:32:06:01 Written notice of claims

If a third-party claim is made or a suit is brought or the covered party has knowledge of injured persons or witnesses, the covered party must give the director written notice within ten calendar days after receiving notification of a claim, suit, injured person, or witness. All notices and documents regarding claims or suits must be sent to:

Executive Director

South Dakota Petroleum Release Compensation Fund

500 East Capitol Avenue

Pierre, South Dakota 57501

telephone - (605) 773-3769

facsimile - (605) 773-6048

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-7, 34A-13-44.

ARSD 74:32:06:02 Reimbursement for third-party claims

The secretary may provide for reimbursement to the covered party for third-party claims arising from a release if the covered party has a legal obligation to pay or, through a settlement agreement negotiated by the third-party administrator or the secretary, is required to pay compensation damages under this chapter.

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-40, 34A-13-41.

ARSD 74:32:06:03 Investigation and defense costs

The secretary may investigate and settle any claim or suit. The obligation to defend and defense costs terminate if the reimbursement limit provided for in SDCL 34A-13-28 is met by judgments or settlements for compensatory damages or cleanup costs reimbursed under chapter 74:32:03.

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-28.

ARSD 74:32:06:04 Exclusions from reimbursement for third-party claims

In addition to the exclusion allowed in SDCL chapter 34A-13, the reimbursement for third-party claims authorized by this chapter does not apply to and may not be provided for the following:

(1) Bodily injury or property damage costs for which the covered party is obligated to pay because of the express assumption of liability in a written contract or agreement;

(2) A release which was expected or intended from the standpoint of the covered party except for such releases ordered by governmental regulatory entities or law enforcement agencies having jurisdiction to order such a release;

(3) Obligation of the covered party for workers' compensation benefits, disability benefits, or unemployment insurance benefits;

(4) Bodily injury to an employee of the covered party or to the spouse, child, parent, brother, or sister of that employee arising out of and in the course of the employee's employment by the covered party. This exclusion applies whether the covered party may be liable as an employer or in any other capacity and to any obligation of the covered party to share damages with or repay someone else who must pay damages because of the injury;

(5) Property damage to property a responsible person owns, borrows, rents, or occupies;

(6) Property damage to a waste facility;

(7) Property damage to personal property in the care, custody, or control of a responsible person;

(8) Loss of value to a third party claimant's property if, after corrective action, the property is in compliance with state environmental standards;

(9) A release at a waste facility;

(10) A release attributable to a covered party's willful or deliberate failure to comply with an applicable statute, regulation, ordinance, directive, or order relating to the protection of the environment and promulgated by a governmental body having jurisdiction over the release;

(11) Fines or penalties;

(12) A release if the responsible person was not in substantial compliance with state and federal regulations applicable to the tank or has failed to comply with any provisions of SDCL chapters 34A-13 and 34A-14 or rules promulgated under them;

(13) Bodily injury or property damage caused by a release from any of the following:

(a) A tank that meets any of the following conditions:

(i) Situated in an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the tank is situated upon or above the surface of the floor;

(ii)Owned or operated by the state, its political subdivisions, or federal government entities whose debts and liabilities are the state's or the United States government's;

(iii) Used in conjunction with electrical or hydraulic equipment;

(iv) With a capacity of 110 gallons or less;

(v) Used for storing heating oil for use on the premises where it is situated; or

(vi) Used to store motor fuel for noncommercial purposes on a farm or residence and with a capacity of 1,100 gallons or less;

(b) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;

(c) An emergency spill or overfill containment system; or

(d) Any one or combination of containers, vessels, and enclosures, including structures and appurtenances to them, that is or has been used primarily or exclusively to contain or dispense petroleum if attached or designed to be attached to a motor vehicle.

History

• Source: 18 SDR 62, effective October 10, 1991.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-9, 34A-13-9.1, 34A-13-25, 34A-13-28, 34A-13-29, 34A-13-41, 34A-13-45, 34A-13-46.

ARSD 74:32:06:05 Cooperation required by covered party

Any covered party must cooperate with the secretary in the investigation, settlement, or defense of any claim or suit, permit access to records or the involved property, and assist the secretary in the enforcement of any right against any person who may be held liable for reimbursed compensatory damages.

No covered party may, except at the covered party's own cost, voluntarily pay any compensatory damages, assume any obligation, or incur any expenses, other than for first aid, without the secretary's prior consent.

History

• Source: 18 SDR 62, effective October 10, 1991; 23 SDR 220, effective June 25, 1997.
• General Authority: SDCL 34A-13-16, 34A-13-40, 34A-13-42.
• Law Implemented: SDCL 34A-13-7, 34A-13-9, 34A-13-29, 34A-13-41, 34A-13-42.