STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 23, 1975
Mr. Reed C. Richards
City Attorney
20 Lee Street - P.O. Box 373
Deadwood, South Dakota 57732
OFFICIAL OPINION NO. 75-116
Deadwood City Dump
Dear Mr. Richards:
You have requested an official opinion concerning the disposal of solid waste at the Deadwood City Dump.
Your first question was when must the City of Deadwood stop burning refuse (garbage) at the city dump. In short, burning of refuse at the city dump must stop immediately. Open burning of refuse is prohibited by the South Dakota Air Pollution Control Regulations, Section 34:10:04:01 which states:
No person shall dispose of refuse or other combustible materials by open burning, or cause, suffer, allow, or permit open burning of refuse or other combustible material, and no person shall conduct, or cause, or permit the conducting of a salvage operation by open burning.
Section 34:10:04:01 became effective for Deadwood on May 10, 1974. Deadwood falls specifically under that section, and does not meet any of the exceptions to that rule.
SDCL 34-16B-31 also addresses your first question by stating:
It shall be unlawful for any person to burn solid waste except in a manner, and under conditions approved by the Department, and the Air Pollution Control Commission as defined by Chapter 34-16A.
Therefore, Deadwood was to have stopped open burning at its city dump on May 10, 1974.
Your second question concerned the liability of the City of Deadwood for open burning after the prohibition thereof.
Liability under the Air Pollution Control Act (SDCL 34-16A-1 et seq.) is established by SDCL 34-16A-44 which states:
Any person who violates any provision of this chapter, or any rules or regulations in force pursuant thereto, other than section 34-16A-21, shall be subject to a fine of not to exceed five thousand dollars. Each day of violation shall constitute a separate offense.
Any burning in violation of Section 34: 10:04:01, supra, would be subject to the fine established by SDCL 34-16A-44 including accidental combustion of refuse. Accidental fires are covered by Section 34: 10:04:01 in that it states: "No person shall ... cause, suffer, allow, or permit open burning ....” (Emphasis added.) The term "allow" is defined "to let happen" (The American Heritage Dictionary of the English Language, American Heritage Publishing Co., Maynard, Massachusetts 1973, p. 35). The term "allow," as interpreted under the plain meaning rule, means that negligence on the part of the City of Deadwood in allowing accidental fires at the city dump, does not excuse compliance with Section 34: 10:04:01, supra. Any other interpretation would thwart the purpose of the Air Pollution Control Act, supra, and the rules made pursuant thereto.
Thus, Deadwood is subject to the penalty stated in SDCL 34-16A-44 for any fires at its dump, whether accidental or intentional.
Your third question concerns the closure of Deadwood's present dump site. The City of Deadwood, with a population of approximately 2,400, must submit the solid waste management plans required by SDCL 34-168-21 to the Department of Environmental Protection for approval by July 1, 1976 and such approved plan must be implemented by July I, 1977 (Solid Waste Disposal Regulation 34:17:01:05). Thus, technically, the present dump site may be used until July 1, 1977, but such an operation must not include open burning, and it is suggested that such operations include frequent burial of refuse (once a week or more) to prevent creating a nuisance or health hazard.
Dump has limited area in which to operate, making open burning, or dumping refuse into Whitewood Creek necessary. The dump being of such size and location puts Deadwood in a position that continued use of the present dump site could result in violation of the Air Pollution Control Act (SDCL 34-16A-1 et seq.), the Solid Waste Disposal Act (SDCL 34-16B-1 et seq., esp. SDCL 34-16B-30 and 34-16B-31), the Water Pollution Control Act (SDCL 46-25-1 et seq.), the Federal Water Pollution Control Act (P.L. 92-500), the Litter Disposal and Control Act (SDCL 34-16C-1 et seq.) and regulations applicable to each respective act.
Your fourth question is what is the liability of the City for continued use of the dump after the use of the present site is prohibited.
If the present dump site were suitable for continued use, the only liability for its use past July 1, 1977, would be the penalty established by SDCL 34-16B-32, and provided none of the other statutes were violated during that period of time.
The present dump site, if used, may result in the violation of the above mentioned statues. Liability for use of the present dump site would depend upon which statute, or statutes were violated, since each has its own liability section.
Liability under the Air Pollution Control Act, supra, as established by SDCL 34-16A-44 amounts to a fine of not to exceed five thousand dollars, and each day of violation is a separate offense.
Section 34-16B-32 establishes the liability for violation of the Solid Waste Disposal Act, supra, and provides for a fine of not more than three hundred dollars, and "each day or part of a day during which such violation is continued or repeated shall constitute a separate offense."
SDCL 46-25-91 and SDCL 46-25-92 establish the liability of a person who violates the Water Pollution Control Act, supra. SDCL 46-25-91 establishes criminal liability and provides for a fine of not more than twenty-five thousand dollars per day of violation or by imprisonment for not more than one year, or both. Also under SDCL 46-25-91, if the conviction is for a violation committed by the same person and such person has been previously convicted for violation of the Water Pollution Control Act, supra, the fine shall not be more than fifty thousand dollars per day of violation.
SDCL 46-25-92 establishes a civil penalty not to exceed ten thousand dollars per day of violation. SDCL 46-25-92 is invoked when an order of the Board of Environmental Protection is violated.
Liability for violation of the Litter Disposal and Control Act, supra, is established by SDCL 34-16C-15 and provides for punishment, upon conviction as for a misdemeanor (maximum fine of $500; imprisonment for a period not to exceed one year). Under SDCL 34-16C-14, the court may order the person convicted to remove and properly dispose of the litter, and tax the costs of required supervision as costs against the person so convicted.
Penalties for violation of the Federal Water Pollution Control Act, supra, are established under Section 309(c). Subsection 309(c)(1) provides for a fine of not less than $2,500 nor more than $25,000 per day of violation, such amount increases to $50,000 per day of violation upon a second conviction for violation of P.L 92-500. Subsection 309(c)(1) also provides for prison terms of not more than I year upon a first conviction and not more than 2 years for a second conviction, and both a fine and imprisonment may result.
Also, under Section 505 of the Federal Water Pollution Control Act a citizen may bring suit to enforce that Act and may receive attorney fees under Section 505(d). The definition of citizen is such that the State of South Dakota would qualify as a citizen.
Thus continued use of the present dump site by Deadwood could possibly result in the following fines:
Air Violation ………………………………………………$ 5,000/day
Water Violation
State ………………………………………. $25,000/day or 50,000/day
Federal………………………….. $2,500 to $25,000/day or 50,000/day
Solid Waste Violation…………...…………………………… $ 300/day
Litter Violation ……………..$ 500/day and possibly cost of cleaning up.
Your fifth question concerned available financial assistance for correcting the situation at the Deadwood dump.
The only financial aid, of which this office is aware, is from the Department of Environmental Protection. The funds from DEP are for the development of new approved sanitary landfills, the closure of old dumping sites, and contractual obligations with other municipal and county governments for joint landfills.
Also, it is suggested that you contact the Federal Government concerning highway beautification funds, the Department of Housing and Urban Development (HUD), and the Environmental Protection Agency (EPA).
Respectfully submitted,
William Janklow
Attorney General
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