September 23, 1976
Dr. Allyn O. Lockner, Secretary
Department of Environmental Protection
Foss Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-85
South Dakota Solid Waste Act
Dear Doctor Lockner:
You have requested an opinion from this office in regard to the following factual situation:
FACTS:
Before the 1976 Legislature met, municipalities and regional disposal systems received grants to help defray solid waste disposal costs under SDCL 34-16B-23 et seq. (Supp. 1975). These grants were either on a one dollar per capita basis with a twenty thousand dollar maximum or a flat ten thousand dollar grant to qualifying regional systems. SDCL 34-16B-23.2, 34-16B-23.3, 34-16B-23.4 (Supp. 1976). One of the qualifications for receiving these grants was operation of or disposal at a disposal site permitted under SDCL 34-16B-8 (Rev. 1972). These grant recipients are at present in compliance with the statutes and the rules of the Board of Environmental Protection.
The 1976 Legislature increased the amounts available to two dollars per capita with a twenty thousand dollar maximum for any single municipality and sixty thousand dollars for a regional system. As the annotation to SDCL 34-16B-23.2 (Supp. 1976) points out, previous grantees can receive the difference in additional funding if they apply by January 1, 1977. Current funding for this grant program has been exhausted and additional appropriations mayor may not be forthcoming.
SDCL 34-16B-34 (Supp. 1976) bars the enforcement of the Solid Waste Act when a county or municipality "has made formal application for but not received Federal or state matching funds sufficient to implement the requirements of this chapter." The obvious question which this situation raises is whether previous grantees now subject to the requirements of the Solid Waste Act become exempt if they reapply for additional money, and appropriations are insufficient to fund the additional grants. The State currently has money invested in numerous landfills, and the Department is anxious to avoid having this money wasted by the reversion of these sites to open burning and open dumping. The resolution of this matter will necessarily affect the priority given previous grantees in priority system rules to be recommended to the Board of Environmental Protection for adoption under SDCL 34-16B-23.5 (Supp. 1976).
Based on the above facts you ask:
QUESTIONS:
1. Should appropriations be insufficient to grant the entire increase in funds to solid waste systems that have received the maximum amount under prior law, will the increase in the grant limit under SDCL 34-16B-23 et seq. (Supp. 1976) create an exemption for those previously funded systems?
2. In addition, since these sites are currently operating in compliance, can the previous funding alone be deemed "sufficient to implement the requirements of this chapter" as provided in SDCL 34-16B-34 (Supp. 1976)?
SDCL 34-16B-34 provides:
None of the remedies or penalties provided by this chapter, including those set forth in §§ 34-16B-32 and 34-16B-33, shall become effective nor be enforced with regard to any county or municipality which has made formal application for but not received federal or state matching funds sufficient to implement the requirements of this chapter.
IN RE QUESTION NO.1:
In regard to your first question, SDCL 34-16B-23.4 provides:
The maximum funding that anyone project can receive under §§ 34-16B-23.1 to 34-16B-23.6, inclusive, shall not exceed twenty thousand dollars if the project is for a single municipality, or not to exceed sixty thousand dollars if the project is for a region.
In view of this above cited statutory provision, it is evident that the Legislature has contemplated that the Department of Environmental Protection may provide for less than the maximum funding for such project. The key then, is not whether or not the Department has provided the maximum funding available, but whether or not under SDCL 34-16B-34, sufficient federal or state matching funds have been provided to "implement the requirements of this chapter."
It is my opinion that, if the Department has provided funds to a governmental subdivision under Chapter 34-16B and the governmental subdivision's solid waste disposal system is in compliance with the statutes and the rules of the Board of Environmental Protection, the fact that the Legislature in 1976 subsequently raised the maximum amount of money available for grants to such governmental subdivisions does not automatically enable such previous grantees to claim an exemption from the penalties of the chapter under SDCL 34-16B-34. The Legislature has never required that the chapter was enforceable only in the event the county or municipality made formal application and in fact received the maximum amount of aid permitted under the chapter. The context of the aid provided by Chapter 34-16B is not that the applicant be given the maximum sum available before the penalty provisions of the chapter apply, but rather is that the penalties of the chapter do not apply unless and until the governmental subdivision applying for assistance receives federal or state matching funds "sufficient to implement the requirements of the chapter." To argue to the contrary is to ignore the expressed legislative intent of SDCL 34-16B and assert a conclusion which could lead only to inefficient use of funds granted prior to the 1976 amendments.
IN RE QUESTION NO.2:
In view of the above expressed arguments and views, the answer to your second question is YES!
I realize that the above conclusions may present some difficult analytic decisions for the department as to future distribution of grant funds. I believe, however, that the Legislature has granted a large discretionary function to the department here, not only in regard to how much money will be necessary (up to the maximum) to put the project in compliance with the regulation of Chapter 34-16B, but also as to how to distribute the available funds to those applying for these funds. This may not be an easy task, but the Legislature has decided that the department, with its particular expertise, is the best qualified and able to make these decisions.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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