S.D. Admin. R. 74:05:12:21
The department may enter into administrative settlement agreements with brownfields applicants and recipients to provide certain environmental liability assurances for brownfields projects as provided for in SDCL 34A-10-17. The settlement agreement is only binding if the applicant or recipient completes the remediation of the project.
If a person is conducting or has completed a response action regarding a specific release that is addressed by the response action at a brownfields site and the response action is in compliance with the State program that specifically governs the response action for the protection of public health and the environment, and there is a release or threatened release of a hazardous substance, pollutant, or contaminant addressed by the response action, the State may not take an administrative or judicial enforcement action or take an action to recover response costs against the person who is conducting or who has completed the response action or against the person's successor's in title, against the person's tenants, or against those persons who engage in operations on the property or their lender-owners regarding the specific release that is addressed by the response action unless the release or threatened release present an imminent and substantial endangerment to public health or the environment.
The State, by and through the Department of Environment and Natural Resources may issue a covenant not to sue on brownfields sites and contiguous real property impacted by such sites where a person is conducting or has completed a response action with certain conditions which may be revoked if the conditions are not met after notice to the parties to the covenant and an opportunity to cure. The covenant not to sue may contain a provision releasing the person who undertook the remediation and the person's successors in title and all persons who lease the property or who engage in operations on the property and their lender-owners from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, or for any cleanup and removal costs, if certain conditions are met. Unless a covenant not to sue is revoked, liability for any additional remediation may not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property. A covenant not to sue and the protections it affords does not apply to any discharge or release that occurs subsequent to the State's issuance of a no further action letter which was the basis of the covenant, or to a separate discharge, release, or threatened release. A covenant not to sue and the protections it affords does not relieve any person of the obligation to comply in the future with laws and regulations. A covenant not to sue does not provide relief from any liability, either under statutory or common law, unless otherwise specifically provided in the covenant.
S.D. Admin. R. 74:05:12:21
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.