STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 29, 1975

Mr. Douglas Hague
Chief Boiler Inspector
Department of Public Safety
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-134

Hot water supply boilers

Dear Mr. Hague:

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

A large percentage of all hot water supply boilers have been and are continuing to be installed with inadequate safety controls. SDCL 34-29A-35 Paragraph 2 requires a fee of $10.00 for the inspection of each hot water supply boiler so long as this is accomplished by the chief boiler inspector or a deputy inspector. SCCL 34-29A-7 exempts these state fees where special inspectors (insurance company employees) perform the external inspection. In this case, a $4.00 charge is set for the certificate (SDCL 34-29A-39).

A hot water supply boiler is defined as set forth in Rule 61 :08:01 :01, Paragraph F to be "a boiler of either instantaneous or storage type, furnishing hot water to be used externally to itself. Temperatures shall not exceed 2500 Fahrenheit, the pressure shall not be over 160 PSIG, and the minimum heat input shall be 140,000 BTU."

Based on the above factual situation, your question is:

Is the Department of Public Safety authorized to require inspections of hot water supply boilers above the 140,000 BTU rating, when the ASME Code referred to in SDCL 34-29A-16 provides for the certification of hot water supply boilers with ratings in excess of 200,000 BTU's?

SDCL 34-29A-16 refers to the AS ME Code in the sense that the Department of Public Safety may adopt such an existing codified publication and when so adopted shall constitute a part of the rules and regulations of the Department of Public Safety. There is nothing in SDCL 34-29A-16 which would require the Department of Public Safety to adopt the code or which would in any way limit the powers of the Department to set standards in addition to such code if indeed they were to adopt it. This being the case, it follows that the Department is authorized to pass Rule 61 :08:01 :01 Subdivision F which defines hot water supply boiler in a manner somewhat different than the ASME Code might define it. The Department of Public Safety is authorized to make a policy judgment in their rulemaking that 140,000 BTU's as opposed to 200,000 BTU's shall be the standard limit above which the provisions of their rules relating to inspections and certifications would apply.

Respectfully submitted,

William Janklow
Attorney General

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