December 29, 1978

Dr. Allyn Lockner, Secretary 
Department of Environmental Protection 
Fourth Floor, Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 78-57

Political subdivision's authority to enforce fugitive dust ordinances against state agencies

Dear Secretary Lockner:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

Rapid City and Pennington County are developing local ordinances for the control of fugitive dust emissions in Rapid City and adjacent areas of Pennington County.  These ordinances will control sources of air pollution that are presently not regulated by the South Dakota Department of Environmental Protection.  Those sources include unpaved streets, vacant lots, parking lots, gravel work, quarries, gravel piles and other land-disturbing activities. 
    
When adopted, these ordinances will be submitted to the Department of Environmental Protection for approval and inclusion in South Dakota's State Implementation Plan.  The approved and revised plan will then be submitted to the United States Environmental Protection Agency for approval. 
    
On December 12, 1978, the South Dakota Board of Environmental Protection will be considering the designation of the City of Rapid City and Pennington County as established local air pollution control agencies as authorized under SDCL 34A-1-36.  Approval would provide them with the necessary authority to enforce their city and county ordinances on fugitive dust emissions.  Also, such approval would constitute revision of the State Implementation Plant pursuant to 40 C.F.R., Part 51 and P.L. 95-95, Sections 129, 171-176.

Based upon the above-mentioned facts, you have asked the following questions:

QUESTIONS: 

1.  Are ordinances adopted by Rapid City and Pennington County for the control of fugitive dust emissions in their respective areas enforceable by them against the State-owned cement plant? 
    
2.  If Rapid City and Pennington County, designated as local pollution control agencies, refused to or were unable to enforce the ordinances adopted by them, does the state and/or federal government have the statutory authority to enforce these ordinances against all sources of fugitive dust in Rapid City and Pennington County, including the State-owned Cement Plant?

IN RE QUESTION NO. 1:

SDCL 34A-1-36 provides:
    
Each municipality and each county may with the approval of the board 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.

SDCL 34A-1-36 grants to municipalities and counties the express authority to establish air pollution control programs and, in turn, to enact ordinances to implement those programs.  But, there is no mention of whether these ordinances are enforceable against state created agencies or entities.

It is an established principle of law that municipal corporations and counties are agencies of the State and as such have only those powers expressly conferred upon them by the Legislature or such as may be necessarily implied from powers expressly granted.

In addition, the State Cement Plant is also an agency of the State.  (S.D. Constitution, Article XIII, Section 10; SDCL 5-17.)

In order to answer your question, the issue to be decided then is whether one state created agency or entity has the authority to control the activities of another state created agency or entity in the absence of an express authorization by the Legislature or the State Constitution.

In the absence of any South Dakota court decisions that have addressed this issue, court decisions from other states will be discussed.

City of Orange v. Valenti, 112 Cal. Rptr. 379, 37 Cal.App.3d 240 (1974), ruled that when the state engages in such sovereign activities as the construction and maintenance of its buildings and the leasing of buildings, it is not subject to local regulations unless the constitution so provides or the Legislature has consented to such regulations.  In this case a company owned an office building in the City of Orange which it leased to the State of California for use as an unemployment insurance office.  The City of Orange brought an action against the State of California and the owner of the building seeking an injunction based on the alleged failure to comply with certain local ordinances.

Although your question is not concerned with the construction and leasing of buildings authorized by the state constitution and the Legislature, the City of Orange case is applicable in that the production of cement by the State Cement Plant is an activity that is also expressly authorized by our state constitution and the Legislature.

A new Jersey court ruled in New Jersey Turnpike Authority v. Susselman, 255 A.2d 810 (1969), that agencies created by the state legislature may not be subjected to rules and regulations of local governing boards and agencies in the absence of clear language subjecting the state created agency to the jurisdiction of the local boards.

Cuyahoga Metropolitan Housing Authority v. Cleveland, 342 F.Supp. 250, aff'd. 474 F.2d 1102, similarily held that municipalities cannot subject the state or its agencies to its laws in the absence of express statutory authority granted by the state legislature.

The courts that have ruled on the issue of local control over state created agencies have held that agencies created by the legislature may not be subjected to local rules, regulations and ordinances unless expressly authorized by the state constitution or the legislature.

It is my view that if it is the intention of the South Dakota Legislature that state created political subdivisions should have the authority to control the activities of another state created agency or entity, this authorization should be specifically granted by the Legislature.  Any problems inherent in such control could then be addressed by the Legislature at that time.

It is my opinion that in the absence of any express authorization by our constitution or the Legislature to subject the State Cement Plant to the jurisdiction of local air pollution control agencies, the answer to your question is NO.  See also Official Opinion No. 77-13 for additional authorities.

IN RE QUESTION NO. 2:

The State of South Dakota as such does not presently have the authority to enforce these particular ordinances against all sources of fugitive dust in Rapid City and Pennington County, including the state owned Cement Plant. Nonetheless, the South Dakota Board of Environmental Protection is authorized by SDCL 34A-1-6 and 34A-1-18 to promulgate rules and regulations for the control of fugitive dust emissions throughout the State of South Dakota or, more specifically, throughout Pennington County.  When these rules become effective, the State of South Dakota would then have the necessary authority to enforce these standards for the control of fugitive dust emissions against all sources of fugitive dust in Rapid City and Pennington County, including the state-owned Cement Plant.

I am declining to give an opinion on whether the federal government has the necessary authority to enforce the ordinances adopted by Rapid City and Pennington County against all sources of fugitive dust in the Rapid City and Pennington County areas.  I would point out, however, that the United States Environmental Protection Agency could amend South Dakota's State Implementation Plan by adopting necessary rules and regulations for the control of fugitive dust emissions in Pennington County.  If this were done, this would then seemingly give the federal government enforcement powers as to such charges against all sources of fugitive dust emissions in Pennington County, including the state-owned Cement Plant.

Respectfully submitted,

William J. Janklow
Attorney General

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