12-30-91
OVERVIEW
TITLE 19:
ENVIRONMENTAL PROTECTION
ROSEBUD SIOUX TRIBE
LAW AND ORDER CODE
The following overview of the Environmental Protection title of the
Rosebud Law and Order Code has been prepared for the convenience of the
Tribal Council.
Chapter 1: Legislative Findings and Purpose. This chapter features
the findings by the Tribal Council that establishes the power of the
Tribe to enact environmental legislation and the jurisdiction of the
Tribe to enforce such legislation. Section 19-1-109 makes it clear,
however, that the Tribe does not waive its sovereign immunity by
enacting the environmental protection title.
Chapter 2: General Provisions. This chapter sets out basic
definitions.
Chapters 3 and 4: The Land Use and Environment Commission and the Land
Use and Environment to Administer this Title. These chapter simply
state that the Land Use and Environment Commission and Department,
which were created in Title 18, are to administer this Title as well.
Chapter 5: Procedures. This chapter sets out the procedures that are
to be followed when the Directors, the Commission, or the Department
acts under this title.
The first part of the chapter sets out the procedures followed in
obtaining permits. One of the general ideas of this title is that it
is the Commission which must decide, with comments from the Reservation
community, whether to allow activities (through permits) that might
harm Reservation resources. This chapter requires the Commission to
consider all the public comments and it also give the person requesting
a permit a heavy handicap. The person requesting a permit must prove
with "clear and convincing evidence" (that is, strongly likely) that
granting such a permit is in the best interests of the Reservation
community.
Also in the first part of the chapter are the procedures for
issuing notices of violation (of either permits or provisions of this
title) and revoking permits. Because the Commission is either imposing
a penalty or taking something away (the permit), it is important that
the alleged violator have a chance to explain himself. The Commission,
through the Directors, has to prove that a violation occurred before
it can impose a penalty or take away a permit. In such a case, the
Director have to prove only with "a preponderance of the evidence"
(that is, more likely than not) that the violation occurred.
The Directors have only a limited amount of decisionmaking power
under the environmental title. The Directors have the power to issue
emergency orders to stop pollution or other threats to the Reservation
environment. The idea here is that, although the Commission should
generally exercise the power to grant permits, there are times when
decisions must be made quickly to protect the Reservation environment.
The Directors can act much more quickly than the Commission. To
safeguard the integrity of the system, however, the Commission must
confirm the Directors' emergency order within five days.
This chapter also recognizes that there may be times when the
Commission may be overloaded or other considerations may keep it from
fully enforcing the environmental title. So, this chapter allow
individual Reservation residents to sue in Tribal Court to stop conduct
that threatens the Reservation environment. This chapter also allows
individual Reservation residents to intervene in proceedings that are
already in progress so that their views can also be heard.
Finally, this chapter allows appeals to the Tribal Court.
Decisions made by the Directors may be reviewed by the Commission. In
turn, decisions made by the Commission may be reviewed by the Tribal
Court.
One innovative part of this chapter is the refusal to allow the
argument that "there is no reasonable alternative" to the activity that
threatens the Reservation environment. Although many courts (including
South Dakota's) recognize this argument as a defense to an action
brought under environmental laws, this chapter does not. This section
is a very aggressive statement that Reservation resources are to be
protected at all costs, not just when it is convenient and cheap.
Chapter Six: Clean Water. This is the first chapter of the title that
sets out the laws actually protecting the Reservation. One of the
first sections of this chapter prohibits the discharge of any
pollutants that reduce the quality of Reservation waters.
The remainder of this chapter essentially sets out the conditions
under which potentially harmful discharges may be made into Reservation
waters. The Director of Water Resources, who administers this chapter
and the wellhead protection chapter, is ordered to create regulations
to control all point and nonpoint sources of pollution in Reservation
waters, and water quality standards are adopted for various bodies of
water located on the Reservation.
The chapter then establishes guidelines for issuing permits to
discharge potential pollutants into Reservation waters. The tribal
permit system under this chapter is designed to be compatible with the
federal system, except that the timeline for obtaining tribal permits
is shorter than the federal timeline. This was done so that tribal
permits can be in place when the federal EPA consists issuing a federal
permit for the same activity. That way, the EPA will have to consider
the terms of the tribal permit when issuing the federal permit, rather
than the other way around.
The last part of this chapter concerns the process known as
"chemigation," in which pesticides or fertilizers are mixed in with
irrigation water. The state of South Dakota recently enacted law
regulating this practice. Under the Tribe's environmental title,
permission to conduct chemigation must be sought through a point-source
permit because the pesticide- or fertilizer-water mixture will come
from a particular source. The Director will have to create more
specific regulations to manage this practice.
Chapter 7: Solid Waste Code. Chapter 7, which is administered by the
Director of Land Use and Management, assigns the Land Use and
Environment Department one of its largest tasks under the Tribal Code:
managing a tribal solid waste disposal site. The first part of the
chapter prohibits the dumping of solid wastes on the Reservation,
except for authorized sites. An exemption is made for farmers
disposing of solid waste that normally results from farm operations.
This part of the chapter also contains standards for the development of
a solid waste disposal plan, the location and design of landfills, and
landfill standards and operating criteria.
This chapter also contains provisions for the issuance of permits
for the operation of landfills and collection systems by entities other
than the Land Use and Environment Department.
The last part of this chapter follows South Dakota law by
requiring that only recyclable or biodegradable garbage bags and can
liners be used on the Reservation and by barring plastic connectors
(i.e., as hold six-packs of cans of soda or beer). This, too, is an
aggressive provision designed to offer the maximum protection to
Reservation lands and resources (including wildlife) and also ensures
that the tribal laws are at least as strict as state law.
Chapter 8: Wellhead Protection. The wellhead protection chapter,
which is administered by the Director of Water Resources, is designed
to protect the quality of community wells. The first part of the
chapter sets out the procedure for creating "Community Wellhead
Protection Areas" or "CWPAs".
Activities that threaten the quality of CWPAs are allowed only by
permit. The Commission can grant a general permit to conduct a
particular activity in CWPAs or the Commission can require that permits
be obtained on a case-by-case basis. As with all permits granted under
this title, the public is entitled to participate in the permit
hearing. In addition to allowing the Reservation community to
participate in the hearing process, this chapter requires that owners
and occupants of land adjacent to the CWPA be given notice of the
permit request.
Chapter 9: Enforcement. The last chapter of the environmental title
focuses on how the Directors, the Commission, and, ultimately,
Reservation residents can enforce the environmental title.
The environmental title makes the Commission primarily responsible
for making the rules and regulations and granting permits, and the
Directors primarily responsible for seeing that the laws are enforced.
Recall that the Directors can issue emergency orders to stop pollution
under Chapter 5. Under this chapter, the Directors can also get a
temporary order from the Tribal Court to stop pollution. In addition,
the Directors can seek civil penalties against all violators and
criminal penalties against Indian violators.
This chapter does grant some enforcement powers to the Commission
by the environmental title. However, unlike the Directors and
Commission, individuals cannot ask the Tribal Court to impose civil or
criminal penalties on violators. Chapter 5 allows individuals to sue
in Tribal Court to stop violations of the environmental title; that
chapter also makes it clear that individuals keep their rights to sue
violators on other grounds, such as nuisance and personal injury.
RESPONSIBILITIES OF THE
DIRECTOR OF LAND USE AND ENVIRONMENT
AND
DIRECTOR OF WATER RESOURCES
TO CREATE RULES AND REGULATIONS
UNDER THE ROSEBUD ENVIRONMENTAL CODE
CHART SEE HARD COPY
HOW THE PROCEDURES
IN THE ROSEBUD ENVIRONMENTAL TITLE
WORK
A. GRANTING PERMITS
Any permit, whether issued under the Clean Water chapter, the Solid
Waste chapter, or Wellhead Protection chapter is issued in the
following manner:
1.
The applicant files a petition for a permit with the Director.
(Water Resources for permits under Chapters 6 and 8;
Land Use and Environment under Chapter 7.)
Upon receipt of a complete petition for a permit
2.
Director issues a notice of public hearing
and publicizes the hearing.
No sooner that 30 days nor
later than 45 days after
publication of last notice
3.
The Land Use and Environment holds a public hearing
at which members of the Reservation community
may present their views on whether the permit should be issued.
Within 30 days
4.
The Commission decides whether to issue
the permit and publicizes its decision.
Within 45 days
5.
The Commissions' decision is final and effective.
If a permit has been granted, the permittee may
begin to do the permitted activity.
If the permit has been denied, the applicant
may appeal the denial to the Tribal Court.
Within 30 days.
6.
Any appeal must be filed with the Tribal Court
or it is waived.
more than 30 days of community service assisting in the collection and
disposal of litter or solid waste. Each day of violation shall be
considered a separate violation of this Title.
SECTION 19-10-105. Civil Penalty.
(1) In addition to any other sanction or remedy available under
this Title, the Land Use and Environment Commission may assess against
any person, after a hearing pursuant to SECTION 19-5-106 or waiver
thereof a civil penalty for the violation. The penalty shall not
exceed $50 for each day the violation existed prior to the service of
a Notice of Violation and $75 per day for each day thereafter; provided
that, when the violation occurs in connection with a venture entered
into for profit, the respective penalty limits shall be $100 and $150
per day; provided, further, that if the Director himself remedies the
conditions causing the violation after the deadline for corrective
action contained in the Notice of Violation has passed and the violator
has not corrected the conditions, the civil penalty may also include
the actual cost of the remedy to the Director plus 20 percent.
(2) The Director shall serve the Notice of Civil Penalty by (i)
personal service, or (ii) United States mail, first-class postage
prepaid, addressed to the last known address of the violator. The
notice shall explain the nature of the violation and the basis of the
amount of civil penalty assessed and provide a time for payment.
Payment may be required in one lump sum within no less than 30 days
from the date of service of the notice or may be paid in installments
over not more than 12 months.
(3) If the violator fails to make payment within the specified
time, or, if an installment payment program is directed, the violator
fails to meet any of the scheduled payments, the Director may commence
an action to recovery the unpaid penalty amounts in Tribal Court.
SECTION 19-10-106. Other Actions.
The Director may also seek other relief from the Tribal Court to
enjoin any action or practices or abate any condition that constitutes
or will constitute a violation of this Title.
B. ISSUING NOTICES OF VIOLATION
(of either permits or Title provisions)
1.
Whenever Director has reason to believe either the Title
or a permit issued under it
has been violated.
the Director serves a written Notice of Violation
upon the alleged violator.
Within 10 days of service of Notice of Violation
2.
If Director has not requested the alleged violator to
appear at a contested hearing,
the alleged violator may request such a hearing.
Within 30 days of service of the Notice of Violation
upon the alleged violator
3.
The Commission shall conduct a contested hearing concerning the alleged
violations.
Within 30 days of the conclusion of the hearing
4.
If the Director proves the violation, the Commission must issue an
order for prevention, abatement or control of pollution.
The order is effective upon service upon the violator.
Within 30 days of issuance of order
5.
Any appeal to the Tribal Court must be filed
or it is waived.
C. REVOKING PERMITS
1.
The Commission gives notice of its intention to
suspend, revoke or modify a permit issued under this Title.
The notice states the date of the revocation, etc., will
become effective.
Within 30 days of the permit holder's receipt of the notice
2.
The permit holder may request a contested hearing if
the Commission has not requested one in the notice.
No less than 30 days from service of notice, or
Within 30 days of permit holder's filing of request for hearing
3.
The Commission will hold a contested hearing.
30 days from conclusion of hearing
4.
Commission decides whether to reinstate the permit.
Within 30 days
5.
Appeal must be filed with the Tribal Court, or right to
appeal is waived
TITLE 19: ENVIRONMENTAL PROTECTION
ROSEBUD SIOUX TRIBE
LAW AND ORDER CODE
DRAFT 4
December 11, 1991
ROSEBUD SIOUX LAW AND ORDER CODE
TITLE 19: ENVIRONMENTAL PROTECTION
TABLE OF CONTENTS
CHAPTER ONE
LEGISLATIVE FINDINGS AND PURPOSE
SECTION 19-1-101. Sovereign Power to Regulate Reservation
Environment.................................... 1
SECTION 19-1-102. Lack of Adequate Environmental Regulations..... 1
SECTION 19-1-103. Demonstrably Serious Impact of Lack of Adequate
Environmental Controls Upon the Economic Security,
Health and Welfare to the Tribe and Tribal Members 2
SECTION 19-1-104. Consensual Relations Among Nonmembers, the Tribe,
and Tribal Members........................ 3
SECTION 19-1-105. Tribal Environmental Liability ................. 3
SECTION 19-1-106. Benefits of Tribal Government .................. 3
SECTION 19-1-107. Territory, Persons and Property Affected........ 4
SECTION 19-1-108. Purpose......................................... 4
SECTION 19-1-109. Sovereign Immunity ............................. 5
CHAPTER TWO
GENERAL PROVISIONS
SECTION 19-2-101. Definitions .................................... 6
(1) "Business" ..................................... 6
(2) "Commission" ................................... 6
(3) "Commissioner" ................................. 6
(4) "Council" or "Tribal Council" .................. 6
(5) "Director" ..................................... 6
(6) "Director of Water Resources" .................. 6
(7) "Immediate Family" ............................. 6
(8) "Notice" ....................................... 6
(9) "Reservation" .................................. 6
(10) "State" ........................................ 7
(11) "Tribal member" or "member" .................... 7
CHAPTER THREE
LAND USE AND ENVIRONMENT COMMISSION
SECTION 19-3-101. Land Use and Environment Commission to Administer
This Title ..................................... 8
SECTION 19-3-102. Power of Land Use and Environment Commission to
Conduct Hearings ............................... 8
SECTION 19-3-103. Power of the Land Use and Environment Commission to
Issue and Enforce Orders and Permits ........... 8
SECTION 19-3-104. Land Use and Environment Commission is State Agency
for Purposes of Federal Law .................... 8
CHAPTER FOUR
LAND USE AND ENVIRONMENT DEPARTMENT
SECTION 19-4-101. Land Use and Environment Department to Administer
This Title ..................................... 9
SECTION 19-4-102. Power of the Land Use and Environment Department to
Inspect Sites of Possible Pollution ............ 9
CHAPTER FIVE
PROCEDURES
SECTION 19-5-101. Definition: "Director" ........................ 10
SECTION 19-5-102. Procedure for Requesting Permits Under this Title
from the Land Use and Environment Commission ... 10
SECTION 19-5-103. Procedure for Issuance of Notices of Violation by
the Director ................................... 11
SECTION 19-5-104. Procedure for Revocation of Permits by the Land Use
and Environment Commission ..................... 12
SECTION 19-5-105. Procedure for Hearing Matters of General Concern to
the Rosebud Reservation Community: Informal Public
Hearings ....................................... 13
SECTION 19-5-106. Procedure for Hearing Contested Matters: Formal
Trial-Like Proceedings ......................... 15
SECTION 19-5-107. Procedure for Issuance of Emergency Orders by the
Director ....................................... 16
SECTION 19-5-108. Parties Entitled to Intervene in Proceedings
Involving Potential Harm to Reservation Resources.16
SECTION 19-5-109. Procedure for Appeal of Decisions Made by the
Director ....................................... 17
SECTION 19-5-110. Procedure for Appeal of Decisions Made by the Land
Use and Environment Commission ................. 17
SECTION 19-5-111. Parties Entitled to Bring Action Under this Title to
Halt Activities that Threaten Reservation
Resources ...................................... 18
SECTION 19-5-112. No Recognition of Affirmative Defense of "No
Reasonable Alternative" ........................ 18
SECTION 19-5-113. Remedies in This Chapter Are Alternative to Remedies
Under Other Tribal Law ......................... 18
CHAPTER SIX
CLEAN WATER
SECTION 19-6-101. Findings and Purposes .......................... 20
SECTION 19-1-102. Definitions .................................... 20
(1) "Chemigation" .................................. 20
(2) "Discharge of a pollutant" ..................... 20
(3) "Nonpoint source" .............................. 20
(4) "Person" ....................................... 21
(5) "Point source" ................................. 21
(6) "Pollutant" .................................... 21
(7) "Pollution" .................................... 21
SECTION 19-6-103. Prevention of Pollution ........................ 21
SECTION 19-6-104. Prohibited Activities .......................... 21
SECTION 19-6-105. Director to Issue Regulations Governing Point and
Nonpoint Sources of Pollution .................. 22
(1) Point Source Regulations ....................... 22
(2) Nonpoint Source Regulations .................... 22
(3) Effect of Regulations .......................... 22
SECTION 19-6-106. Contingency Plan to Deal with Imminent Threats to
Health and Welfare ............................. 22
SECTION 19-6-107. Water Quality Standards ........................ 23
(1) Standards for Identified Waters ................ 23
(2) Antidegradation Standards ...................... 23
SECTION 19-6-108. Permits Required to Degrade or Discharge Pollutants
Into Reservation Waters ........................ 24
SECTION 19-6-107. Notice of Petition to Degrade Waters ........... 24
SECTION 19-6-108. Hearing Upon Petition; Burden of Proof ......... 25
SECTION 19-6-109. Decision of Land Use and Environment Commission to
Grant or Deny Petition ......................... 25
SECTION 19-6-110. Effective Date and Publication of Decision ..... 25
SECTION 19-6-111. Appeals ........................................ 26
(1) Right to Appeal ................................ 26
(2) Method of Appeal ............................... 26
(3) Procedures for Appeal .......................... 26
(4) Timing of Hearings and Decision ................ 26
SECTION 19-6-112. Judicial Review ................................ 26
SECTION 19-6-109. Permits to Degrade Reservation Waters .......... 27
SECTION 19-6-110. Permits for Point Source Discharges ............ 27
(1) Federal and Tribal Permits Required ............ 27
(2) Tribal Permit for Point Source Discharge ....... 28
(3) Director's Initial Action and Public Participation
on Permit Application .......................... 28
(4) Decision of the Land Use and Environment
Commission ..................................... 29
SECTION 19-6-111. Term of Permits Issued Under This Chapter ...... 29
SECTION 19-6-112. Permit Revocation .............................. 29
SECTION 19-6-113. Permits Required for Nonpoint Sources of Pollution
Prohibited; Director to Issue Nonpoint Source
Pollution Regulations .......................... 30
(1) Jurisdiction Over Nonpoint Sources of Pollution
Prohibited ..................................... 30
(2) Nonpoint Source Regulations .................... 30
(3) Effect of Nonpoint Source Regulations .......... 30
SECTION 19-6-114. Contingency Plan to Deal with Imminent Threats to
Health and Welfare ............................. 30
SECTION 19-6-112. Compliance with Standards and Requirements of Land
Use and Environment Commission to Use Irrigation
System for Chemigation ......................... 31
SECTION 19-6-113. Land Use and Environment Commission to Promulgate
Rules and Standards Regarding Chemigation ...... 31
CHAPTER SEVEN
SOLID WASTE CODE
SECTION 19-7-101. Findings and Purposes .......................... 32
SECTION 19-7-102. Definitions .................................... 33
(1) "Beverage" ..................................... 33
(2) "Beverage container" ........................... 33
(3) "Biodegradable" ................................ 33
(4) "Contaminate" .................................. 33
(5) "Degradable" ................................... 33
(6) "Demolition waste" ............................. 33
(7) "Hazardous waste" .............................. 33
(8) "Hospital or medical wastes" ................... 33
(9) "Landfill" ..................................... 33
(10) "Litter" ....................................... 33
(11) "Person" ....................................... 34
(12) "Photodegradable" .............................. 34
(13) "Putrescible waste" ............................ 34
(14) "Solid waste" .................................. 34
(15) "Solid waste disposal site" .................... 34
(16) "Vector" ....................................... 34
SECTION 19-7-103. Unlawful Practices ............................. 34
(1) Dumping of Solid Wastes Anywhere Other Than at
Authorized Sites (2) Dumping of Solid Wastes into
Reservation Waters ............................. 35
(3) Litter ......................................... 35
(4) Accumulation of Garbage and Refuse ............. 35
(5) Bulky Items .................................... 36
SECTION 19-7-104. Exemption for Farming Operations ............... 36
SECTION 19-7-105. Powers of Land Use and Environment Commission
Under this Chapter ............................. 36
SECTION 19-7-106. Development of Solid Waste Disposal Plan ....... 37
SECTION 19-7-107. General Solid Waste Disposal Site Standards .... 38
SECTION 19-7-108. Landfill Location Standards .................... 38
SECTION 19-7-109. Landfill Design ................................ 39
SECTION 19-7-110. Landfill Performance Standards ................. 39
(1) Air ............................................ 39
(2) Surface Water .................................. 39
(3) Ground Water ................................... 40
(4) Disease ........................................ 40
(5) Methane ........................................ 40
SECTION 19-7-111. Landfill Site Operating Criteria ............... 40
(1) Separation of Materials ........................ 40
(2) Physical Operation at Disposal Sites ........... 40
(3) Burning ........................................ 41
(4) Access ......................................... 41
(5) Monitoring Programs ............................ 41
(6) Correction of Contamination .................... 42
(7) Control of Liquids ............................. 42
(8) Control of Hazardous Waste ..................... 42
(9) Safety ......................................... 42
SECTION 19-7-112. Closure of Landfills ........................... 42
SECTION 19-7-113. Special Wastes ................................. 43
(1) Prohibited Materials ........................... 43
(2) Hospital or Medical Wastes ..................... 43
SECTION 19-7-114. Dumping Fees ................................... 44
SECTION 19-7-115. Collection Systems Practices ................... 44
(1) General ........................................ 44
(2) Collection Periods ............................. 44
(3) Collection Vehicles ............................ 44
(4) Preparation of Garbage and Refuse for Collection 44
(5) Charges for Collection ......................... 45
SECTION 19-7-116. Drop Box Standards ............................. 46
SECTION 19-7-117. Permits Required to Operate Disposal Sites and
Collection Systems ............................. 46
SECTION 19-7-118. Permits to Operate Solid Waste Disposal Sites... 46
(1) Petition for Permit to Operate Solid Waste
Disposal Site .................................. 46
(2) Issuance of Permit to Operate Solid Waste Disposal
Site ........................................... 48
(3) Term of Permit to Operate Solid Waste Disposal
Site ........................................... 48
SECTION 19-7-119. Permits Required to Operate Collection System .. 48
(1) Application for Permit to Operate Collection
System ......................................... 48
(2) Issuance of Permit to Operate Collection System 49
(3) Term of Permit to Operate Collection System .... 49
SECTION 19-7-118. Permit Revocation .............................. 49
SECTION 19-7-120. Reusable, Recyclable or Biodegradable Containers
Required ....................................... 49
SECTION 19-7-121. Recyclable or Degradable Plastic Garbage Bags or
Garbage Can Liners Required .................... 50
SECTION 19-7-122. Starch-Based or Degradable Plastic Garbage Bags
or Garbage Can Liners Required ................. 50
CHAPTER EIGHT
WELLHEAD PROTECTION CODE
SECTION 19-8-101. Findings ....................................... 51
SECTION 19-8-102. Definitions .................................... 51
(1) "Aquifer" ...................................... 51
(2) "Contaminant" .................................. 51
(3) "Community Wellhead Protection Area" ........... 51
(4) "Community Water systems" ...................... 51
(5) "Director" ..................................... 52
(6) "Facility" ..................................... 52
(7) "Groundwater" .................................. 52
(8) "Hazardous Wastes" ............................. 52
(9) "Hazardous substance" .......................... 52
(10) "Operator" ..................................... 52
(11) "Person" ....................................... 52
(12) "Pesticide" .................................... 52
(13) "Well" ......................................... 53
SECTION 19-8-103. Initial Designation of Community Wellhead
Protection Areas ............................... 53
SECTION 19-8-104. Official Community Wellhead Protection Area Map 53
SECTION 19-8-105. Designation of Additional or Amended Wellhead
Protection Areas ............................... 54
(1) General ........................................ 54
(2) Basis for Designation .......................... 54
(3) Procedure for Designation of New or Amendment
of Existing Community Wellhead Protection Area.. 54
(4) Announcement of Commission's Designation ....... 55
(5) Final Designations or Amendments to Community
Wellhead Protection Areas ...................... 55
(6) Amendment of Community Wellhead Protection Area
Map ............................................ 55
(7) Enforceability of Additional or Amended Community
Wellhead Protection Areas ...................... 56
SECTION 19-8-106. Community Wellhead Protection Area Regulation .. 56
(1) Activities Prohibited in Community Wellhead
Protection Areas ............................. 56
(2) De Minimis Activities or Facilities Not
Prohibited ................................... 56
(3) Activities Requiring Permits ................. 56
SECTION 19-8-107. General Permits .............................. 57
SECTION 19-8-108. Specific Permits ............................. 57
SECTION 19-8-109. Nonconforming Activities ..................... 58
(1) Prohibited Activities or Facilities Shall Cease
Within One Year of Designation of a Community
Wellhead Protection Area ..................... 58
(2) Permits to be Sought Within One Year of
Designation of a Community Wellhead Protection
Area ......................................... 58
CHAPTER NINE
AIR QUALITY CODE
(RESERVED)
CHAPTER TEN
ENFORCEMENT
SECTION 19-10-101. Action by Director for Immediate Restraint of
Pollution ................................... 60
SECTION 19-10-102. Action by Land Use and Environment Commission
to Enjoin Violations ........................ 60
SECTION 19-10-103. Abatement Actions by Director ............... 60
SECTION 19-10-104. Criminal Penalty ............................ 60
SECTION 19-10-105. Civil Penalty ............................... 61
SECTION 19-10-106. Other Actions ............................... 61
ROSEBUD SIOUX LAW AND ORDER CODE
TITLE 19: ENVIRONMENTAL PROTECTION
CHAPTER ONE
LEGISLATIVE FINDINGS AND PURPOSE
SECTION 19-1-101. Sovereign Power to Regulate Reservation Environment.
The power to regulate the Reservation environment is an inherent
and essential part of the authority of any reservation tribal
government. This power is therefore an aspect of the retained
sovereignty of Indian tribes except where it has been limited or
withdrawn by federal law. The Rosebud Sioux Tribe is a sovereign
Indian Tribe organized pursuant to the Act of June 18, 1934, 48 Stat.
984, as amended, and governed pursuant to a Constitution and Bylaws
ratified on November 23, 1935, and approved by the Secretary of the
Interior, Harold L. Ickes, on December 16, 1935, as amended from time
to time thereafter. Pursuant to the Constitution and Bylaws, as
amended, the Rosebud Sioux Tribal Council is the governing body of the
Rosebud Sioux Tribe. This Title is enacted pursuant to the inherent
sovereign tribal powers expressly delegated to the Tribal Council in
Article IV, Section 1(c), (h), (i), (k), (m), (t) and (u) of the Tribal
Constitution, which authorize the Tribal Council to manage and
otherwise deal with tribal lands and property, to exclude by ordinance
from the restricted lands of the Reservation persons not legally
entitled to reside therein, to promulgate and enforce ordinances
providing for the maintenance of law and order and the administration
of justice on the Reservation, to regulate the conduct of trade and the
use and disposition of property upon the Reservation, to regulate
tribal agencies and tribal officials, and to delegate to subordinate
boards or tribal officials the foregoing powers, subject to review by
the Tribal Council.
SECTION 19-1-102. Lack of Adequate Environmental Regulations.
The Rosebud Reservation, tribally owned trust lands and allotted
trust lands owned by enrolled tribal members lie within Todd, Tripp,
Mellette, Gregory and Lyman Counties, South Dakota. Todd County, in
which the majority of the Reservation lies, is unorganized under South
Dakota state law and consequently has no environmental regulations of
any kind. The remaining four counties, although organized under South
Dakota state law, are similarly without environmental regulations of any
kind.
SECTION 19-1-103. Demonstrably Serious Impact of Lack of Adequate
Environmental Controls Upon the Economic Security,
Health and Welfare of the Tribe and Tribal Members.
The Reservation is checkerboard with both trust and nontrust land
and within the historical boundaries of the Rosebud Reservation are
substantial populations of both Indians and non-Indians. The
Reservation was established as an agricultural reservation for farming
and ranching purposes to provide a permanent homeland for the Tribe.
Since establishment of the Reservation by the Treaty, the Tribe has
maintained the essential character of the entire Reservation; however,
as additional residential, commercial, governmental and agricultural
activities multiply, the need for adequate environmental controls grows
ever more serious. Tribal land and tribal members are the most
precious assets of the Tribe. The Reservation is too valuable a tribal
resource to permit the uncontrolled use and alteration of the
Reservation environment, and its attendant pollution and destruction.
The Council finds that such uncontrolled use of the Reservation
environment has a demonstrably serious impact that imperils the
economic security, health, welfare and general well-being of the Tribe,
its members, and all residents of the Reservation, resulting in:
(1) gradual loss of the essential character of the Reservation,
(2) destruction of the historical and cultural values and
traditions of the Tribe,
(3) deterioration of the aesthetics of the Reservation,
(4) increased air, water and solid waste disposal pollution,
(5) increased contaminants of drinking water from the Ogallala
Aquifer and surface water supplies, and
(6) deterioration of the standards of living, quality of life,
welfare and well-being of all Reservation residents, whether tribal
members or not.
SECTION 19-1-104. Consensual Relations Among Nonmembers, the Tribe,
and Tribal Members.
The Council finds that every person who uses land, whether trust
lands or nontrust land, within the Reservation, enters into consensual
relations, commercial dealings and contracts with residents of the
Reservation, Indian and non-Indian, and with the Tribe and that all
such uses of land have a demonstrably serious impact which imperils the
economic security, health, welfare and general well-being of the Tribe,
its members, and all residents of the Reservation.
SECTION 19-1-105. Tribal Environmental Liability.
The Rosebud Sioux Tribe is subject to certain liabilities under
certain federal laws, including the Solid Waste Disposal Act, codified
at 42 U.S.C. SECTIONS 6901-6992k, and the Resource Conservation and
Recovery Act (RCRA), codified at 42 U.S.C. SECTIONS 6901-6991i, and the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), codified at 42 U.S.C. SECTIONS 9601-9675, any discarded
materials on the Reservation, including solid wastes; liquid and
contained gaseious wastes; semi-solid wastes; sludges; and toxic,
lethal and hazardous wastes.
Because of five counties within which the Reservation and
tribally owned and individually owned trust lands lie do not have
adequate environmental laws, it is imperative, within its jurisdiction,
the Tribe regulate all discarded materials and uses and substances that
are potentially harmful to the Reservation environment.
SECTION 19-1-106. Benefits of Tribal Government.
Among the benefits provided by the tribal government to tribal
members and to nonmembers residing or conducting business within the
Rosebud Reservation are the following:
(1) The provision of a civilized form of government and civilized
environment within which to reside and do business;
(2) The provision of governmental services, including sewer and
water systems, police and fire protection, and a Tribal Court system of
general jurisdiction;
(3) The promotion and regulation of economic activities within
the Tribe's sovereign jurisdiction; and
(4) The orderly development and protection of the Reservation
lands, resources and communities.
SECTION 19-1-107. Territory, Persons and Property Affected.
To the extent not prohibited by federal law, this Title shall
apply to the following.
(1) The Rosebud Sioux Reservation within the historical
boundaries of the Reservation established in Section Two of the Act of
March 2, 1889, 25 Stat. 888, including all lands, islands, waters,
roads, and bridges, or any interests therein, whether in trust or
nontrust status and notwithstanding the issuance of any patent or
right-of-way, and such other lands, island, waters or any interest
therein thereafter added to the Reservation;
(2) All trust or restricted land of the Tribe or any enrolled
member of the Tribe situate within the historical boundaries of the
Reservation established in Section Two of the Act of March 2, 1889, 25
Stat. 888, including all islands, waters, roads, or any interests
therein, including Tripp, Mellette, Gregory and Lyman Counties, South
Dakota;
(3) All persons and property within any geographical area
referred to in subsections (1) and (2), above, that are subject to the
jurisdiction and governmental power of the Tribe.
SECTION 19-1-108. Purpose.
The Council hereby declares it to be in the public interest that
all uses of land, whether trust land or nontrust land, by enrolled
tribal members and nonmembers be regulated as hereinafter provided in
order to:
(1) encourage only environmentally sound use of Reservation lands
and resources;
(2) protect the sacred, cultural, social and economic stability
of residential, agricultural, commercial, industrial, forest, wildlife,
and environmentally sensitive lands, water resources, and other areas
within the Rosebud Reservation, and to assure the orderly used of such
areas;
(3) prevent the menace to the public safety resulting from the
improper location of buildings and land uses; and
(4) otherwise promote the public health, safety, morals, and
general welfare in accordance with the treaty rights reserved by the
Rosebud Sioux Tribe.
SECTION 19-1-109. Sovereign Immunity.
The Rosebud Sioux Tribe, and all its constituent parts, including
the Land Use and Environment Commission established pursuant to this
Chapter, are immune from suit in any jurisdiction, except to the extent
that such immunity has been expressly and unequivocally waived by the
Tribe in this Title or elsewhere. Nothing in this Chapter shall be
construed as waiving the sovereign immunity of the Tribe or any of its
constituent parts, including the Land Use and Environment Commission.
Nothing in this Title, nor any appeal to the Tribal Court, nor any
enforcement action taken pursuant to this Chapter, shall constitute a
waiver of such sovereign immunity as to any claim for damages,
attorneys fees or costs, regardless of whether any such claim arises
out of the same transaction or occurrence, or in any other respect.
Nothing in this Title shall be construed as a legislative of tribal
liability under federal, tribal or state environmental laws or as a
waiver of tribal sovereign immunity with respect thereto.
CHAPTER TWO
GENERAL PROVISIONS
SECTION 19-2-101. Definitions.
In this Title, except where otherwise specifically provided or the
context otherwise requires, the following terms and expressions shall
have the following meanings:
(1) "Business" means any activity engaged in by any person, or
caused to be engaged in by any person, with the object of gain,
benefit, or advantage, either direct or indirect;
(2) "Commission" means the Land Use and Environment Commission
created and established by Title 18 of this Code to administer Title
18 and 19 of this Code.
(3) "Commissioner" means one of the members of the Commission.
(4) "Council" or "Tribal Council" means the Rosebud Sioux Tribal
Council established as the governing body or the Rosebud Sioux Tribe
in the Tribal Constitution.
(5) "Director" means Director of the Land Use and Environment
Department established by Title 18 of this Code, except that in
Chapters 6 and 8 of this Title, "Director" means the Director of Water
Resources unless otherwise specifically indicated.
(6) "Director of Water Resources" means the Director of Water
Resources established by Chapter 6 of this Title.
(7) "Immediate family" means brother, sister, son, daughter,
mother, father, husband, wife, step-brother, step-sister, half brother,
half sister, or brother, sister, son, daughter, mother or father by
adoption.
(8) "Notice", as used in this section, means publication in any
newspaper of general circulation on the Reservation.
(9) "Reservation" means
(a) The Rosebud Sioux Reservation within the historical
boundaries of the Reservation established in Section Two of the Act of
March 2, 1889, 25 Stat. 888, including all lands, islands, waters,
roads, and bridges, or any interests therein, whether in trust or
nontrust status and notwithstanding the issuance of any patent or
right-of-way, and such other lands, island, waters or any interest
therein thereafter added to the Reservation;
(b) All trust or restricted land of the Tribe or any
enrolled member of the Tribe situate within the historical boundaries
of the Reservation established in Section Two of the Act of March 2,
1889, 25 Stat. 888, including all lands, islands, waters, roads and any
interests therein, including Tripp, Mellette, Gregory and Lyman
Counties;
(c) All persons and property within any geographical area
referred to in subsections (1) and (2), above, that the subject to the
jurisdiction and governmental power of the Tribe.
(10) "State" means the State of South Dakota.
(11) "Tribal member" of "member" means an individual Indian who
is enrolled in the Rosebud Sioux Tribe.
CHAPTER THREE
LAND USE AND ENVIRONMENT COMMISSION
SECTION 19-3-101. Land Use and Environment Commission To Administer
This Title.
The Land Use and Environment Commission, a governmental agency and
subordinate subdivision of the Tribe created and established pursuant
to Title 18 of this Code, shall administer this Title 19 pursuant to
all powers and duties delegated to it by Title 18 of this Code. All
references in Title 18 with respect to powers and duties of the
Commission, whether general or specific, and whether referring to Title
18 only, shall refer to this Title as well.
SECTION 19-3-102. Power of Land Use and Environment Commission to
Conduct Hearings.
In addition to other powers conferred upon it by this Title and
Title 18, the Land Use and Environment Commission shall have power to
hold hearings relating to any aspect of the administration of this
Title.
SECTION 19-3-103. Power of the Land Use and Environment Commission to
Issue and Enforce Orders and Permits.
In addition to other powers conferred upon it by this Title and
Title 18, the Land Use and Environment Commission shall have power to
issue such permits and orders as may be necessary to effectuate the
purposes of this Title and enforce the same by all appropriate
administrative and judicial proceedings.
SECTION 19-3-104. Land Use and Environment Commission is State Agency
for Purposes of Federal Law.
The Land Use and Environment Commission shall be designated as a
state agency for all state purposes of the Clean Water Act, codified
at 33 U.S.C. SECTIONS 1251-1387; the Solid Waste Disposal Act, codified
at 42 U.S.C. SECTIONS 6901-6992k; and the Hazardous and Solid Waste
Amendments of 1984, Pub. L. 98-616, as amended to January 1, 1992.
CHAPTER FOUR
LAND USE AND ENVIRONMENT DEPARTMENT
SECTION 19-4-101. Land Use and Environment Department to Administer
This Title.
The Land Use and Environment Department, a governmental agency and
subordinate subdivision of the Tribe created and established pursuant
to Title 18 of this Code, shall administer this Title 19 pursuant to
all powers and duties delegated to it or to the Director by Title 18 of
this Code. All references in Title 18 with respect to the duties of
the Department or the Director, whether general or specific, and
whether referring to Title 18 only, shall refer to this Title as well.
SECTION 19-4-102. Power of the Land Use and Environment Department to
Inspect Sites of Possible Pollution.
Upon complaint by any person or upon its own motion, the
Department may investigate the activities of any permittee under this
Title. In conducting an investigation under this provision, the
Department shall have the right, without notice, to enter into the
permittee's place of business or operation, to inspect any books or
records of the permittee, and to inspect any of the permitee's
equipment. Such power may be exercised by authorized agents,
representatives, and employees of the Department, including the
Directors of Land Use and Environment and of Water Resources.
CHAPTER FIVE
PROCEDURES
SECTION 19-5-101. Definition: "Director".
For purposes of this Chapter, except where otherwise specifically
provided or the context otherwise requires, the term "Director" shall
mean the Director of Water Resources for purposes of actions taken
pursuant to Chapters 6 and 8 of this Title; for purposes of actions
taken pursuant to all other Chapters of this Title, the term "Director"
shall mean the Director of Land Use and Environment.
SECTION 19-5-102. Procedure for Requesting Permits Under this Title
from the Land Use and Environment Commission.
(1) To obtain a permit under this Title, a person must file a
petition with the Director requesting a permit to conduct an activity
that is regulated by this Code.
(2) Such petition shall provide, at the minimum, the following
information:
(a) The legal description of the property involved;
(b) The reason why the activity is required to achieve
necessary and justifiable economic or social development;
(c) The overriding considerations of the public interest
which would be served thereby.
(d) The reason why any proposed degradation of the
environment will not interfere with or be injurious to the designated
beneficial uses.
(3) Upon receipt of a petition for a permit the Director shall
provide notice of such petition according to SECTION 19-5-105(1). Such
notice shall also include a statement of the purpose of the proposed
activity or discharge of a pollutant.
(4) When determining whether to issue permits under this Title,
the Land Use and Environment Commission shall follow the procedures for
informal public hearings set forth in SECTION 19-5-105, below.
(5) Any person petitioning for a permit or an extension,
amendment or renewal of an existing permit, that authorizes activity
that could result in a significant risk of pollution, contamination or
degradation of the Reservation environment and that is not covered by a
performance or damage bond or other financial assurance instrument, may
be required as a condition of the permit to provide financial
assurance guaranteeing the performance of corrective actions to
contain, mitigate and remedy all pollution, contamination or
degradation that may be caused by such activity. The financial
assurance shall be in a form and in a reasonable and proper amount, all
of which shall be approved by the Commission, and may include but is not
limited to insurance, company net worth considerations, a surety bond,
escrow account, letter of credit, trust, guarantee, or cash deposit.
(6) All right and title in any bond or other security required by
the Land Use and Environment Commission shall be in the Rosebud Sioux
Indian Tribe until the Commission releases the said security. The bond
or other security is not an asset of the person required to provide it
and may not be canceled, assigned, revoked, disbursed, replaced of
allowed to terminate without the approval of the Commission.
SECTION 19-5-103. Procedure for Issuance of Notices of Violation by
the Director.
(1) Whenever the Director has reason to believe that a violation
of this Title, or any rules made or permits issued under it, has
occurred, he shall serve a written Notice of Violation under the
alleged violator or his agent. Such service shall be either by (i)
personal service, (ii) attaching the notice conspicuously to the home,
building, business, or other location where the violation has occurred,
or (iii) United States mail, first-class postage prepaid, addressed to
the last known address of the alleged violator. For purposes of this
section, service by mail is complete upon mailing.
(2) Such Notice of Violation shall state separately each
violation of this Title, the specific section of this Title has been
violated, what corrective action is necessary to comply with the Title,
and the reasonable time established by the Director for compliance.
(3) When calculating a reasonable time for compliance, the
Director shall take into consideration:
(a) the type and degree of violation;
(b) the threat to public health and the environment posed by
the violation;
(c) the difficulty of compliance and the financial and
material means of the alleged violator;
(d) the expressed intent and past record of compliance of the
alleged violator.
An extension of time for compliance may be granted by the
Director, but only upon a showing that the corrective actions required
by the Director have been commenced and that the work is progressing at
a satisfactory rate.
(4) The Director may require the alleged violator to appear for a
contested hearing to be conducted by the Land Use and Environment
Commission in accordance with the procedures set forth in SECTION
19-5-106, below, to answer the charges made against him; provided,
however, that such requirement is stated in the Notice of Violation
served upon the alleged violator.
(5) The alleged violator may request a hearing before the Land
Use and Environment Commission to be conducted in accordance with the
procedures set forth in SECTION 19-5-106, below to answer the charges
made against him; provided, however, that the request is filed with
the Commission and served upon the Director within 10 days of service
of the Notice of Violation.
(6) If a contested hearing is requested pursuant to either
subsection (4) or (5) above, the Commission shall hold a contested
hearing pursuant to SECTION 19-5-106, below, within 30 days of service
of the notice required by subsection (1), above. A hearing shall not
stray the running of the time for compliance established pursuant to
SECTION 19-5-103(3), above. The Director shall have the burden of
proving, by a preponderance of the evidence, that a violation has
occurred.
(7) Within 30 days after conclusion of the hearing, if the
Director proves a violation, the Commission shall issue an order for
the prevention, abatement or control of pollution. The order shall
state the date or dates by which any violation shall cease and may
prescribe timetables for necessary action in preventing, abating, or
controlling the pollution and shall be served by United States mail,
first-class postage prepaid, upon the alleged violator and the
Director. The order shall be effective on service upon the violator.
SECTION 19-5-104. Procedure for Revocation of Permits by the Land Use
and Environment Commission.
(1) The Land Use and Environment Commission may revoke, modify or
suspend, in whole or in part, any permit issued pursuant to this Title.
Such a revocation, modification or suspension must be for cause, which
may include but is not limited to a violation of any permit conditions,
obtaining a permit by misrepresentation or failure to disclose any
relevant facts, or changes in conditions that require revocation,
modification or suspension of the permit so as to preserve the quality
of Reservation resources.
(2) The Commission shall give 30 days written notice of its
intention to revoke, modify or suspend a permit to the holder of the
permit and the Director. Such notice shall state the basis for the
Commission's proposed action and shall be delivered to the permit
holder by personal service or by United States mail, first-class
postage prepaid. If the Commission intends to revoke a permit issued
pursuant to Chapter Six of this Title, it shall also serve a copy of
such notice upon the United States Environmental Protection Agency.
(3) Within 30 days of receipt of the notice required by
subsection (2) above, the holder of the permit may request a contested
hearing pursuant to SECTION 19-5-106. Such a hearing shall be held
within 30 days of service upon the Commission of such request, and the
Director shall prove, by a preponderance of the evidence, why the
permit should be revoked, modified or suspended. A request for a
hearing does not stay the revocation, modification or suspension of the
permit. The Commission's decision shall be issued within 30 days of
conclusion of the hearing, and shall be served by United States mail,
first-class postage prepaid, upon the permit holder and the Director.
(4) Revocation, modification or suspension of a permit shall be
effective upon the date indicated in the notice required by subsection
(2) above.
(5) The Commission's final order revoking, modifying, or
suspending any permit shall be publicized pursuant to SECTION
19-5-105(5). If the Commission revokes a permit issued pursuant to
Chapter Six of this Title, it shall serve a copy of its revocation
order upon the United States Environmental Protection Agency as well.
SECTION 19-5-105. Procedure for Hearing Matters of General Concern to
the Rosebud Reservation Community: Informal Public Hearings.
Where this Title requires or where the Land Use and Environment
Commission is to act upon matters that affect the Reservation community
and members of the Rosebud Indian Tribe, including the issuance of
permits under this Title, or where the Land Use and Environment
Commission determines in its discretion that an informal public hearing
is required, the Director shall:
(1) Issue a notice that includes:
(a) A statement of the time, place, and nature of the
informal public proceedings;
(b) A statement of the purpose of the proposed activity;
(c) Either the specific language of the request to conduct
the proposed activity or a description of the contents of the request;
(d) Whenever the language of the proposed request is not
included in the notice, a statement that a copy of the proposed request
is available free of charge from the Land Use and Environment
Department and an explanation of how to obtain a copy; and
(e) The name of the person in the Department to whom the
public may direct questions about the proposed request.
(2) Publicize such notice by;
(a) Providing it to each member of the Land Use and
Environment Commission;
(b) Publishing it at least twice in a newspaper of general
circulation on the Reservation; and
(c) Posting it conspicuously at the Tribal Administrative
Building.
(3) Schedule an informal, public hearing at which any person may
express his views on the requested activity orally or in writing;
provided, however, that the Director may set a reasonable limit on the
length of time each person may speak. The Director shall schedule such
meeting no sooner than 30 days nor later than 45 days after issuance of
the last notice required by SECTION 19-5-105(2)(b).
(4) After consideration of all evidence presented to it during
the informal public hearing within 30 days of the conclusion of that
hearing, the Land Use and Environment Commission shall issue its
decision. Such a decision shall be made in accordance with the best
interest of the Reservation community and members of the Rosebud Indian
Tribe.
(5) The Land Use and Environment Commission shall announce its
decision by:
(a) providing a copy of its decision to each member of the
Tribal council;
(b) publishing its decision once in a newspaper of general
circulation on the Reservation; and
(c) posting a copy of its decision conspicuously at the
Tribal Administrative Building.
(6) The decision of the Commission shall be final and effective
45 days after the Commission's decision is published in the newspaper.
SECTION 19-5-106. Procedure for Hearing Contested Matters: Formal
Trial-Like Proceedings.
Where required by this Title, or where the Land Use and
Environment Commission determines in its discretion, that a formal,
trial-like proceeding be held:
(1) The Director shall provide timely notice to all interested
parties of:
(a) the time, place and nature of the formal hearing; and
(b) the matters of law and fact asserted
by either personal service or by United States mail, first-class
postage prepaid.
(2) The Land Use and Environment Commission shall give all
interested parties the opportunity to:
(a) present and cross-examine witnesses;
(b) submit facts and arguments.
(3) During the pendency of any formal trial-like proceeding, no
member of the Commission or the Department, including the Directors of
Land Use and Environment and Water Resources, may communicate with a
person interested in the proceeding unless he gives notice to other
interested parties of the communication.
(4) After consideration of all evidence presented to it at the
hearing and within 30 days of the conclusion of that hearing, the Land
Use and Environment Commission shall issue its decision. Such a
decisions shall be made in accordance with the best interest of the
Reservation community and members of the Rosebud Indian Tribe.
(5) The Commission shall publicize its decision in accordance
with SECTION 19-5-105(5), above. The decision of the Commission shall
be effective within 20 days of its issuance.
SECTION 19-5-107. Procedure for Issuance of Emergency Orders by the
Director.
(1) No person may, in violation of this Title or any rule or
permit issued under it, commit an act that will cause substantial
pollution to Reservation resources, the harmful effects of which cannot
be remedied immediately after the commission or cessation of the act.
The Director may issue an emergency order requiring the person to stop,
avoid, or moderate the act so that the substantial injury will not
occur. Such an order is effective immediately upon receipt by the
person to whom it is directed. If the order is not complied with in a
timely manner, the Director may contain and recover pollutants to limit
or prevent pollution of any Reservation resources.
(2) Notice of an emergency order shall be given in accordance
with SECTION 19-5-105(1), above, so far as is possible given the
nature of the emergency. Such a notice shall state that the order is
an emergency order.
(3) Upon issuing an emergency order pursuant to subsection (1)
above, the Director shall set a place and a time for a hearing no more
than five days after issuance of the order. The hearing shall be
conducted as a contested hearing pursuant to SECTION 19-5-106. At such
hearing, the Commission shall either confirm or reject the Director's
issuance of such order.
(4) The Commission's decision is reviewable by the Tribal Court
pursuant to SECTION 19-5-110; however, a request for such review shall
not stay the effectiveness of the order.
SECTION 19-5-108. Parties Entitled to Intervene in Proceedings
Involving Potential Harm to Reservation Resources.
(1) The Land Use and Environment Commission may permit any person
or other legal entity to intervene as a party in any proceeding before
the Commission that involves conduct that might pollute, impair or
degrade Reservation resources. To intervene, a person must file a
pleading with the Commission that alleges that the proceeding involves
conduct that has the effect of polluting, impairing or degrading the
air, water or other natural resources of the Reservation. Such a
pleading must be filed at least three days before the last Commission
hearing conducted before the issuance of the final decision.
(2) In a proceeding for judicial review of a Commission decision,
the Tribal Court may also permit such intervention upon the filing of a
pleading. In a Tribal Court proceeding, a pleading requesting
intervention shall be filed with the tribal court and served upon the
parties to the Tribal Court proceeding. To be timely, a request for
intervention in a Tribal Court proceeding must be filed with the court
and served upon all parties to the judicial proceeding within 10 days
of the filing of the request for judicial review.
SECTION 19-5-109. Procedure for Appeal of Decisions Made by the
Director.
(1) Within 30 days of the issuance any decision under this Title
or the issuance of any other order by the Director, such as an order to
comply or an order assessing civil penalties, any person adversely
affected by the order may appeal to the Land Use and Environment
Commission.
(2) An appeal shall be instituted by the delivery, no later than
30 days after the date of the order appealed from, of a notice of
appeal to the office of the Land Use and Environment Commission and to
the office of the Director. The notice shall state the appellant's
name and address, the order appealed from, and the general grounds of
the appeal.
(3) In any appeal, the Land Use and Environment Commission may
adopt such procedures that set such schedules as are appropriate for
the circumstances, including informal hearings or formal trial-like
proceedings, provided that any appellant may demand and shall be
granted the right to formal trial-like hearings in its notice of
appeal, and provided further, that in any appeal, the Commission shall
hold an informal hearing at which the appellant, and any other
interested person, may appear to present his position on the appeal.
(4) Any hearing on an appeal shall be held no later than 30 days
after the notice of appeal is filed, unless the Land Use and
Environment Commission grants a request for extension for good cause.
(5) The Land Use and Environment Commission shall issue its
decision on any appeal no later than 30 days after conclusion of any
hearing held as part of the appeal.
SECTION 19-5-110. Procedure for Appeal of Decisions Made by the Land
Use and Environment Commission.
Any person adversely affected by a decision of the Land Use and
Environment Commission may appeal the decision to the Tribal Court
within 30 days of the Commission's decision. In any such appeals
proceeding, the decision of the Commission shall be upheld unless the
court shall find that the Commission decision:
(1) Violates this Title or any other law or custom of the Rosebud
Sioux Tribe;
(2) Was arbitrary, capricious or an abuse of discretion; or
(3) Was made without observance of procedure required by law or
custom of the Rosebud Sioux Tribe.
SECTION 19-5-111. Parties Entitled to Bring Action Under this Title to
Halt Activities that Threaten Reservation Resources.
(1) Any person or other legal entity, including the Rosebud Sioux
Tribe, any of its political subdivisions, and the federal government,
may maintain an action in Tribal Court for declaratory and equitable
relief against any person or other legal entity for the protection of
the air, water and other Reservation natural resources; provided, that
this section shall not constitute a waiver of the sovereign immunity of
the Rosebud Sioux Tribe or any of its subordinate entities as to any
action for the protection of Reservation natural resources.
(2) No action may be commenced under subsection (1) of this
provision unless:
(a) prior to filing his complaint, the plaintiff gives 60
days' notice of the alleged harm or degradation to each of the
following: (i) the Director of Land Use and Environment (or Water
Resources if the alleged harm or delegation is to Reservation waters);
(ii) the Land Use and Environment Commission; (iii) the Rosebud Sioux
Indian Tribe; and (iv) the alleged violator;
(b) all proceedings before the Land Use and Environment are
final; and
(c) no enforcement proceedings have been initiated by the
Commission or by the Director.
SECTION 19-5-112. No Recognition of Affirmative Defense of "No
Reasonable Alternative".
In light of the Rosebud Sioux Indian Tribe's paramount concern for
the protection of Reservation natural resources from pollution,
impairment or degradation and the health and welfare of Reservation
residents, neither the Directors of Land Use and Environment and Water
Resources, the Land Use and Environment Commission, nor the Tribal
Court shall recognize the argument that there is no feasible and
prudent alternative to the defendant's conduct and that such conduct is
consistent with the promotion of the health of Reservation residents as
an affirmative defense to any action brought to protect Reservation
resources from pollution, impairment or degradation.
SECTION 19-5-113. Remedies in This Chapter Are Alternative to Remedies
Under Other Tribal Law.
A purpose of this Title is to provide additional and cumulative
remedies to prevent, abate, and control the pollution and delegation of
Reservation natural resources. Accordingly, this Chapter shall not be
interpreted to list the only remedies for harm to Reservation natural
resources, nor shall it be interpreted to limit or change rights or
remedies for such harm available under tribal law, nor shall it be
construed as preventing the Tribe, the Director, the Land Use and
Environment Commission, or any Reservation resident from exercising
their rights under tribal law to suppress nuisances or to abate
pollution or other regulation of Reservation natural resources.
CHAPTER SIX
CLEAN WATER
SECTION 19-6-101. Findings and Purposes.
The Tribal Court finds that pollution of the waters of the
Reservation constitutes a menace to public health and welfare, is
harmful to fish, wildlife, and aquatic life, and impairs domestic,
agricultural, industrial, recreational, and other beneficial uses of
water.
The purpose of this Chapter is to:
(1) Conserve the waters of the Reservation;
(2) Protect, maintain, and improve the quality of the waters of
the Reservation for the propagation of fish and wildlife, and for
domestic, industrial, agricultural, municipal, recreational, and other
beneficial uses;
(3) Provide for the prevention, abatement, and control of new or
existing water pollution;
(4) Provide a basis for cooperation as necessary and appropriate
with other sovereign governments, including other Indian tribes, states
and the federal government, to achieve these purposes.
SECTION 19-6-102. Definitions.
In this Chapter, except where otherwise specifically provided on
the context otherwise requires, the following terms and expressions
shall have the following meanings:
(1) "Chemigation" means any process whereby fertilizers or
pesticides are added to irrigation water applied to land or crops or
both through an irrigation system;
(2) "Discharge of a pollutant" means any addition of any
pollutant to the waters of the Rosebud Reservation from a point source.
(3) "Nonpoint source" means any source of the discharge of a
pollutant other than a point source.
(4) "Person" means any individual, receiver, assignee, trustee in
bankruptcy, trust, estate, firm, partnership, joint venture, club,
company, joint stock company, business trust, investment trust,
municipal corporation, corporation, association, syndicate, pool,
organization, society, political entity, or any group of individuals
acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or
otherwise.
(5) "Point source" means any discernible, confined, and discrete
conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, vessel or other floating craft,
from which any pollutant is or may be discharged.
(6) "Pollutant" means any material that when added to water,
causes pollution, including but not limited to, dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical, biological, or radioactive materials, heat, wrecked of
discarded equipment, rock, sand, cellar dirt, soil, industrial,
municipal and agricultural products of waste.
(7) "Pollution" means the human-made or human-induced alteration
of the chemical, physical, biological, or radiological integrity of
water.
SECTION 19-6-103. Prevention of Pollution.
(1) Pollution of the waters of the Reservation is declared not to
be reasonable, beneficial or natural use of waters and to be contrary
to the public policy of the Tribe.
(2) In order to carry out the Tribe's public policy as set forth
in this Chapter, the Director of Water Resources and the Department of
Land Use and Environment shall implement this Chapter and work
cooperatively with other tribal departments, agencies, or entities,
Reservation residents and businesses, the federal government, and, as
appropriate or necessary, governments of states of the United States to
prevent, abate and control pollution of the waters of the Reservation.
SECTION 19-6-104. Prohibited Activities.
(1) Except as may be permitted under this Title, no person shall
cause or allow the discharge of any pollutant from a point source or
nonpoint source that reduces the quality of the waters of the
Reservation to below the standards established pursuant to SECTION
19-6-105 of this Chapter.
(2) No person shall violate the terms or conditions of any
pollution discharge or activity permit or regulation issued pursuant to
this Chapter.
Section 19-6-105. Director to Issue Regulations Governing Point and
Nonpoint Sources of Pollution
(1) Point Source Regulations.
Within 360 days of passage of this Title, the Director of
Water Resources shall promulgate final regulations, in accordance with
the procedure set forth in Section 19-5-105, setting forth management
practices to control all point sources of pollution within the
boundaries of the Rosebud Reservation.
(2) Nonpoint Source Regulations.
(a) Within 360 days of passage of this Title, the
Director of Water Resources shall promulgate final regulations, in
accordance with the procedures set forth in Section 19-5-105, setting
forth management practices to control nonpoint source pollution from
livestock grazing and agricultural activities.
(b) From time to time after he has issued the
final regulations required by Sections 19-6-105(1) and 19-6-105(2)(a),
the Director may promulgate or amend in the same manner other
regulations setting forth management practices to control point and
nonpoint source pollution from agricultural practices, grazing, or
other activities.
(3) Effect of Regulations.
(a) Upon promulgation of regulations pursuant to
Sections 19-6-105(1) and 19-6-105(2), no person who complies with those
regulations may be found liable for illegal pollution as the result of
an activity conducted consistent with such regulations.
(b) If conduct of an operation consistent with the
regulations results in a violation of the water quality standards
established by this Chapter, including its antidegradation policy, the
Director shall order the person responsible for the violation to alter
his operation in a manner to prevent the violation and shall give him a
reasonable time to bring his operations into compliance. At the end of
that reasonable time, the person responsible shall be fully liable for
illegal pollution under the terms of this Chapter.
Section 19-6-106. Contingency Plan to Deal with Imminent Threats to
Health and Welfare.
Within 90 days to the passage of this Title and pursuant
to procedures set forth in Section 19-5-105, the Director shall issue a
final
contingency plan to implement the emergency authority granted him by
Section 19-5-107 of this Chapter.
Section 19-6-107. Water Quality Standards.
(1) Standards for Identified Waters. The following are
hereby established as the beneficial uses and water quality standards
of each of the listed surface waters:
LIST OF SURFACE WATER AND BENEFICIAL USES AND WATER
QUALITY STANDARDS TO BE SUPPLIED BY THE TRIBE.
(2) Antidegradation Standards. Notwithstanding the
water quality criteria established for streams, rivers, lakes, or
other bodies of water in Section 19-6-107(1), it is the policy of the
Tribe to prevent the unnecessary degradation of any waters of the
Reservation, which policy shall be implemented as follows:
(a) Existing beneficial uses shall in all cases
be maintained and protected and no water quality degradation shall be
allowed that would interfere with or become injurious to existing
beneficial uses;
(b) Under no circumstances may the degradation of
the water quality of the following unique waters be allowed:
LISTING OF UNIQUE WATER TO BE SUPPLIED BY THE TRIBE.
(c) Whenever surface waters other than those
unique waters listed in Section 19-6-107(2)(b) are of higher quality
than provided for by the applicable Water Quality Standards, the
existing higher water quality shall be protected, and no degradation
shall be allowed unless the Commission waives the requirement that the
higher water quality be maintained. The Commission may grant such a
waiver only after a public hearing according to the procedures set forth
in Section 19-5-105.
Section 19-6-108. Permits Required to Degrade or Discharge Pollutants
Into Reservation Waters.
Except as specifically provided for or modified in this
Chapter, the procedures set forth in Sections 19-5-102 and 19-5-105,
above, shall govern the consideration and issuance of any permit under
this Chapter.
Section 19-6-109. Permits to Degrade Reservation Waters.
(1) Upon petition in accordance with Section 19-5-102(1),
(2) and Section 19-6-108, above, the Land Use and Environment
Commission shall, in accordance with Section 19-5-105, decide whether
to issue a permit to conduct an activity that will cause or allow the
discharge of a pollutant into any body of Reservation water for which
water quality standards are established (including those waters listed
in Section 19-6-107(1) and (2)(b)). If an applicant seeks a point
source discharge permit, he shall include the request for water quality
degradation in the permit petition.
(2) Upon application to and upon a determination by the
Director of Water Resources that an emergency exists, the Director may
authorize short-term degradation of water quality (not to exceed 30
days) in any body of water for which water quality standards are
established (including those waters listed in Section 19-6-107(1) and
(2)(b)). If the applicant seeks a point source discharge permit, he
shall include the request for short-term water quality degradation in
the petition.
(a) For purposes of Section 19-6-109(2), an
"emergency" is defined as circumstances that threaten
the public health or welfare or prevents essential
activities from proceeding.
(b) The Director may permit such short-term
degradation only if he determines that clear and
convincing evidence demonstrates that the degradation
will not cause long-term injury or interfere with water
quality and the designated beneficial use is for the
affected water body.
(c) In all cases involving emergencies as defined
in Section 19-6-109(2)(a), the Director of Water
Resources shall, at a minimum, provide notice of his
action to the Tribal Council and post notice on the
Tribal Agency Action Bulletin Board. In addition, the
Director shall provide the closest approximation to the
procedures set forth in Section 19-5-105, taking into
account the nature of the emergency.
(d) In circumstances in which the Director of
Water Resources determines to be emergencies, he may
shorten the time within which the permit becomes
effective unless the Commission acts to stay the decision
upon appeal.
Section 19-6-110. Permits for Point Source Discharges.
(1) Federal and Tribal Permits Required.
(a) Any point source discharge of pollutants into
the waters of the Reservation requires a permit from the
federal Environmental Protection Agency. No person may
discharge any pollutant from a point source into
waters of the Reservation without having first
obtained a permit from the EPA.
(b) Further, no person may discharge any pollutant from a
point source into waters of the Reservation without first having
obtained a permit from the Commission pursuant to this Chapter.
(2) Tribal Permit for Point Source Discharge.
(a) In lieu of a petition for permit as required by
Sections 19-5-102 and 19-6-109(1) and (2), the applicant shall
provide to the Director of Water Resources a complete and
full copy of his petition to the federal Environmental
Protection Agency at the same time as it is supplied to the
EPA.
(b) Upon receipt of a complete petition the Director of
Water Resources shall immediately contact the appropriate
federal Environmental Protection Agency office and advise it of
the Director's intent to review and provide public participation
on the permit petition. The Director shall request that EPA
not act prior to conclusion of the tribal process.
(c) Within two weeks of having first received a petition,
the Director may request the applicant to supply within a
reasonable time such additional information as he deems
necessary to permit a thorough review of the petition. If the
applicant fails to submit the requested information within the
reasonable time established in the Director's request, the
Director may reject the petition for such failure.
(b) Upon receipt of a complete petition pursuant to
Section 19-6-109 or 19-6-110(2)(a), the Land Use and
Environment Commission shall, in accordance with the
procedures established in Section 19-5-105, above, determine
whether to issue the requested permit; provided, however, that
the Commission shall grant the permit only if it finds, by
clear and convincing evidence, that:
Commission shall not grant a permit unless it finds on the
record that:
(i) the discharge will not result to a violation of
the water quality standards set forth in this Chapter or
subsequently adopted, except as allowed by Section
19-6-107(2)(c) or Section 19-6-107(2)(d) of this Chapter;
and
(ii) the discharge will not interfere with or
injure existing beneficial uses.
(b) If the federal Environmental Protection Agency has
not yet issued a permit, the Director shall urge EPA to act
consistent with the decision on the tribal permit. If EPA has
issued a permit, the Director shall insure that the Commission's
permit conditions are at least as stringent as those in the
EPA permit.
Section 19-6-111. Term of Permits Issued Under This Chapter.
A permit granted under this Chapter shall have the same term as
and run concurrently with any EPA permit granted for the same discharge.
Section 19-6-112. Compliance with Standards and Requirements of Land
Use and Environment Commission to Use Irrigation System for
Chemigation.
Any person who utilizes an irrigation system for chemigation
shall comply with any standards and requirements that are established
by the Land Use and Environment Commission pursuant to Sections
19-6-105(1) and 19-6-113.
Section 19-6-113. Land Use and Environment Commission to Promulgate
Rules and Standards Regarding Chemigation.
Within 360 days of passage of this Title, the Land Use and
Environment Commission, with the assistance of the Director of Water
Resources, shall establish, by rules made in accordance with
Section 19-5-105;
(1) Chemigation equipment standards, performance standards
and installation requirements; and
(2) Requirements regarding the use and location of
antipollution devices.
The requirements and standards established pursuant to this section
shall provide for additional protection if chemigation involves the
application of a pesticide, rather than a fertilizer.
CHAPTER SEVEN
SOLID WASTE CODE
Section 19-7-101. Findings and Purposes.
The Tribal Council finds that:
(1) The health and welfare of the Rosebud Sioux tribal members
and other persons who reside on the Rosebud Reservation and the
opportunities for economic development on the Reservation are at risk
from the indiscriminate and uncontrolled disposal of solid waste on
the Reservation;
(2) Solid waste is generated by Indians and non-Indians on the
Rosebud Reservation and Indians and non-Indians alike suffer from
improper disposal;
(3) The improper disposal of solid waste on the Reservation
is contrary to the historic close relationship between the people of
the Rosebud Sioux Tribe and their land;
(4) The continued growth of population and economic activity
on the Reservation will generate greater amounts of solid waste;
(5) There is a need for an organized effort to manage
properly the disposal of solid waste on the Rosebud Reservation; and
(6) The Rosebud Sioux Tribe, as the properly constituted
sovereign government of the Rosebud Reservation should undertake to
regulate and manage the disposal of solid waste.
The purposes of this Chapter are to:
(2) Provide environmental and health standards for the
collection and disposal of solid waste;
(3) Prohibit future open dumping and littering of waste on the
Reservation and eliminate unhealthy, unsightly and indiscriminate
disposal or placement of solid waste; and
(4) Inform and educate persons living on the Reservation of
the need to participate fully in efforts to manage solid waste
generation, transportation, and disposal on the Reservation.
Section 19-7-102. Definitions.
(1) "Beverage" means beer or other malt beverages and mineral
waters, soda water and similar carbonated soft drinks in liquid form
and intended for human consumption;
(2) "Beverage container" means the individual, separate,
sealed glass, metal or plastic bottle, can, jar or carton containing
a beverage;
(3) "Biodegradable" means degradable through a process by
which fungi or bacteria secrete enzymes to convert a complex molecular
structure to simple gasses and organic compounds;
(4) "Contaminate" means to introduce a substance into water
that would cause:
(a) The concentration of that substance to exceed the
maximum concentration or contaminant levels established
pursuant to federal law and regulations; or
(b) An increase in the concentration of such substance
where the concentration in the ground water already exceeds
the levels established by federal law and regulations.
(5) "Degradable" means capable of decomposing by
biodegradation, photodegradation or chemical process into harmless
component parts after exposure to natural elements for not more than
365 days.
(6) "Demolition waste" means any solid waste, largely inert
waste, resulting from the demolition of or razing of buildings, roads,
and other man-made structures, and any other material defined as
"demolition waste" pursuant to federal law;
(7) "Hazardous waste" means solid waste that is flammable,
corrosive, radioactive, toxic or reactive or that otherwise meets the
criteria established for hazardous waste in federal law.
(8) "Hospital or medical wastes" includes laboratory or
surgical wastes, such as tissues, specimens of blood elements, excreta,
and secretions obtained from patients or laboratory animals, or
clothing, rags, or paper goods contaminated with such waste.
(9) "Landfill" means a disposal facility or part of a
facility at which solid waste is permanently placed in or on the land;
(10) "Litter" means any discarded, used or unconsumed substance
or waste, including but not limited to any garbage, trash, refuse,
debris, rubbish, grass clippings or other lawn or garden waste,
newspaper, magazines, glass, metal, plastic or paper containers or
other packaging construction material, abandoned motor vehicle, motor
vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or
offensive matter of any kind, any object likely to injure a person or
create a traffic hazard, or anything else of an unsightly or
unsanitary nature that has been discarded, abandoned or otherwise
improperly disposed of;
(11) "Person" means an individual, firm, association,
co-partnership, political subdivision, government agency, municipality,
public or private corporation, or any other entity whatsoever, except
for the Rosebud Sioux Tribe as a sovereign entity;
(12) "Photodegradable" means degradable through a process in
which ultraviolet readiation in sunlight causes a chemical change in
a material;
(13) "Putrescible waste" means solid waste that contains
material capable of being decomposed by microorganisms;
(14) "Solid waste" means all putrescible and nonputrescible
solid and semi-solid wastes including, but not limited to, abandoned
vehicles or parts thereof, ashes, demolition and construction wastes,
discarded commodities, garbage, industrial wastes, rubbish, swill, and
all other materials defined as "solid waste" pursuant to federal law.
"Solid waste" also means all liquid, solid and semisolid materials
that are not the primary products of public, private, industrial,
commercial, mining, and agricultural operations. Solid waste includes
but is not limited to sludge from waste water treatment plants and
septage from septic tanks and wood waste;
(15) "Solid waste disposal site" means the location where
any final treatment, utilization processing or deposition of solid
waste occurs;
(16) "Vector" means a living animal, insect, or other
anthropoid which transmits or can transmit an infectious disease from
an organism or another.
Section 19-7-103. Unlawful Practices.
(1) Dumping of Solid Wastes Anywhere Other Than at
Authorized Sites. No person shall dump, place, abandon, or deposit
any solid wastes on land except at disposal sites authorized by the
Department or Land Use and Environment.
(2) Dumping of Solid Wastes into Reservation Waters. No
person shall dump, place, abandon or deposit any solid wastes into
Reservation waters except in a manner approved by the Land Use and
Environment Commission.
(3) Litter. No person may discard litter on Reservation lands.
(4) Accumulation of Garbage and Refuse. It shall be unlawful
for any person, firm, corporation, or government entity to place,
leave, dump, or permit the accumulation of any solid waste, including
garbage, rubbish or trash, in any building or upon any premises or on
property within the boundaries of the Rosebud Reservation, except in
garbage cans or other containers for purposes of collection by an
authorized collection agent or at an approved disposal site.
(5) Bulky Items. It shall be unlawful for any person to
place, leave, dump, or permit the accumulation of unused, large
bulky items, such as white goods (refrigerators, stoves, etc.) or
inoperable cars or trucks or parts thereof in any open and visible
location on the Rosebud Reservation.
(6) Landfills and Collection Systems. No person may operate
a landfill or solid waste disposal site or operate a solid waste
collection system unless he has obtained a permit for such operation
pursuant to this Title.
Section 19-7-104. Exemption for Farming Operations.
No provision of this Chapter shall be construed so as to
prohibit a farmer or rancher from disposing solid waste resulting from
normal farming operations upon his own land; provided, that such
disposal does not create a nuisance or a public health hazard, or
does not otherwise violate tribal law.
Section 19-7-105. Powers of Land Use and Environment Commission Under
this Chapter.
For purposes of this Chapter, the Land Use and Environment
Commission has the authority to:
(1) Adopt a solid waste management plan for the Rosebud
Reservation;
(2) Locate, design, build, and operate solid waste disposal
sites;
(3) Operate a solid waste collection system;
(4) Contract on behalf of the Rosebud Sioux Tribe with other
persons or entities to operate solid waste disposal sites or a solid
waste collection system, to dispose otherwise of solid waste, or to
perform such other actions as are useful to accomplish the objectives
of this Chapter and the duties of the Commission;
(5) Issue permits as provided in this Chapter for the
operation of solid waste sites or solid waste collection systems;
(6) Employ and consult with such advisors regarding its
duties as it may deem necessary;
(7) Make recommendations to the Tribal Council on issues
related to solid waste;
(8) Levy such fees as may be required to fund its operation
and recommend to the Tribal Council the levy of taxes as may be required
or useful solid waste regulation and disposal;
(9) Accept and use monies from whatever sources as are
legally available to them to fund its operations;
(10) Promulgate and enforce regulations consistent with this
Title, and promulgate regulations and procedures governing the work and
operations of the Commission not inconsistent with the provision of this
Code.
(11) Do everything necessary or proper not otherwise forbidden
by law for the accomplishment of the obligations and duties imposed by
this Title.
(12) The Commission may delegate to the Director of Land Use
and Environment such of its duties as it deems appropriate, except
that it may not delegate its duties under Section 19-7-105 and Section
19-7-119(2) of this Title. Further, in all cases, the Commission must:
(a) Approve the expenditure of funds by the Department
either through approval of Department budget or by approval of
specific expenditures;
(b) Approve any contracts entered into by the Department
in the name of the Rosebud Sioux Tribe;
(c) Approve any levy of fees by the Department; and
(d) Approve all regulations proposed by the Department
to regulate solid waste on the Reservation.
Section 19-7-106. Development of Solid Waste Disposal Plan.
(1) Within 180 days of the passage of this Title, the Director
of Land Use and Environment shall present to the Land Use and
Environment Commission for its approval a comprehensive Solid Waste
Management Plan for the Reservation. In designing the Plan, the
Director may propose to use, in a combination that he deems most
appropriate, any of the mechanisms authorized by this Title, including
operation of parts or all of the system by Land Use and Environment
Department staff, federal agency staff, contractors, or permittees.
Such Plan shall include, at a minimum:
(a) a solid waste collection system and disposal plan, the
goal of which shall be the collection and proper disposal of
all solid waste on the Reservation;
(b) a mechanism to fund continued operation of the system,
which shall include, at a minimum, fees for Department-operated
collection system and deposit of waste in any
Department-operated disposal site, including special fees
levied against deposit of large or bulky debris, large volume
demolition debris, or large volume construction debris;
(c) an education and public involvement program to
encourage proper disposal of waste;
(d) a recycling program to require or encourage recycling
if the Director deems it feasible; and
(e) a plan to investigate the options for establishing
comprehensive system of hazardous waste control, including
controls on household hazardous waste.
(2) Within 15 days of presentation of the Solid Waste
Management Plan by the Director, the Land Use and Environment Commission
shall publicize the existence of the Plan and make widely available on
the Reservation a Plan summary. Within 45 days, the Commission shall
hold two public hearings at locations of its choice, to permit
Reservation residents to comment on the proposed Plan.
(3) The Plan as proposed by the Director shall go into effect,
and the Director shall commence its implementation, 100 days after the
Director submits it to the Land Use and Environment Commission, unless
the Commission acts to promulgate an amended Plan within the same 100
days.
Section 19-7-107. General Solid Waste Disposal Site Standards.
It is the intent of this Chapter that any solid waste disposal
site, whether operated by the Land Use and Environment Department or
by others under permit from the Land Use and Environment Commission
shall, to the greatest extent practical, taking into account the needs
and capabilities of the Tribe and the Reservation community and the
environmental quality of the Reservation, meet or exceed the
environmental and health-related performance standards established by
applicable federal law.
Section 19-7-108. Landfill Location Standards.
(1) No landfill shall be located closer than 10,000 feet from
any airport runway.
(2) No landfill shall be located within 1,000 feet of a lake,
pond, slough, river, stream, or wetland. To the greatest extent
possible, landfills will be located at substantially greater distances
from any surface water of significance.
(3) No landfill shall be visible from, nor shall it be closer
than 1,000 feet to, a public park or principle Reservation roadway or
in a location where the facility would constitute a potential safety
hazard to the public.
(4) No landfill shall be located in an unstable area subject
to significant erosion, mass soil movement, or other geologic or soil
conditions which could adversely affect the safety and environmental
integrity of the landfill.
(5) No landfill shall be located in a manner that will cause
significant adverse impact to recreational opportunities, wildlife
habitat or populations, or Reservation aesthetics.
(6) To the greatest extent possible, taking into account the
other requirements of this Title, no landfill shall be located within
3,000 feet [measured from its exterior boundary as established in
Section 19-7-109] of a dwelling inhabited at the time of landfill
location.
(7) No landfill will be located within 2,000 feet of a
domestic water well, unless the Director determines that the well will
not be contaminated by the solid waste site and establishes a water
monitoring program for the well, or the Director provides substitute
water source of equal or better convenience and quality.
Section 19-7-109. Landfill Design.
(1) All landfills shall be designed and certified by an
experienced engineer to meet the location, performance and operating
standards established by this code to protect health and environmental
quality.
(2) All landfill designs shall establish a "landfill boundary"
which shall encompass an area judged sufficient to accept all solid
waste planned or anticipated to be deposited at the site during the
planned site life, plus a 100 yard perimeter buffer.
(3) All landfills will be designed using drainage or control
or diversion systems or other methods so as to limit, to the greatest
extent possible, erosion, infiltration, and surface poundage.
Section 19-7-110. Landfill Performance Standards.
(1) Air. No landfill shall violate any federal or tribal air
quality standard or requirement applicable on the Rosebud Reservation.
(2) Surface Water. No landfill shall cause a discharge of
pollutants into waters of the United States in violation of the federal
Clean Water Act or any applicable tribal requirements.
(3) Ground Water.
(a) No landfill shall cause contamination beyond the
landfill boundary of ground water of quality sufficient to be
used for domestic drinking water purposes unless the Director
extends the area of contamination beyond the normal boundary
by no more than an additional 100 yards beyond the Title
established landfill boundary upon a determination (i) that
the ground water is not currently used for drinking water
purposes and (ii) the ground water will not be needed in the
future for drinking water purposes, taking in to account the
rate and expected increase or decrease of groundwater use, the
availability of alternative drinking water supplies, and the
overall effect on the health of Reservation residents.
(b) In no case shall a landfill cause the contamination
of ground water used for drinking water at the time of site
location, unless the Director determines at the time of disposal
site location that it is in the public interest to permit
contamination of the groundwater and users of that drinking
water are provided an alternative supply of water of equal or
greater quality, and convenience as their original source.
(4) Disease. All landfills shall minimize the population of
on-site disease vectors, such as insects and rodents.
(5) Methane. All landfills must assure that the concentration
of methane gas at the project boundary or in project structures not
exceed the limits established by federal regulations.
Section 19-7-111. Landfill Site Operating Criteria.
(1) Separation of Materials. Solid waste disposal sites
shall provide separate locations for the placement of certain
materials not to be placed in the landfill pit, including trees or
tree branches, car bodies, and large bulky metal goods (including
"white goods" such as refrigerators, stoves, etc.), or other items
identified in this Title or by the Land Use and Environmental
Commission in its Plan or regulations as hazardous or otherwise
unsuited for landfilling. Persons seeking to deposit such materials
at landfills shall be required to separate such materials and place
them in the identified locations.
(2) Physical Operation at Disposal Sites. All landfills must
utilize procedures to meet these operating standards:
(a) Refuse shall be unloaded at the bottom of the open
working face of the fills. This may be accomplished either by
direction or supervisory personnel or by the placement of
stationary or portable fencing.
(b) Deposited refuse shall be uniformly distributed and
compacted in layers. A working face with a slope sufficient to
permit thorough compaction shall be maintained.
(c) At the end of each working day, unless extreme
weather conditions make operations infeasible, the open face
of the landfill shall be covered with sufficient earth to
control disease vectors and fire.
(d) At least two days worth of cover material shall be
stockpiled at all times.
(e) When each portion of the landfill site has been
completed, it shall be covered by at least twenty-four inches
of compacted earth, which will support nonweedy plant growth
and is free from cracks and extrusions of refuse. This final
cover shall be leveled and shaped to provide proper runoff and
drainage, and to prevent erosion or poundage and meet the
design performance requirements of this Title.
(f) All landfills shall be operated to control litter at
the unloading area and throughout the area within the site
boundary through the use of fences, other litter control
devices, and regular, at least bi-weekly, pickup. Disposal
site operators shall also pick up site-generated litter beyond
the site boundary if such occurs.
(g) All landfills must be operated to control dust,
using sprayers or similar devices as necessary.
(3) Burning. Except as provided herein, no open burning may
occur at a solid waste disposal site. Infrequent burning of trees or
tree branches, agricultural wastes, or land clearing debris may occur
if conducted away from the working fills in an area specially designated
for that purpose and in a manner to prevent the spread of fire to any
other area or materials.
(4) Access.
(a) All landfills must be provided with an all weather
access road, suitable for travel by loaded vehicles.
(b) All landfills must be fenced and access must be
provided only through one control entry point
(5) Monitoring Programs. Each landfill shall operate a
monitoring program designed and approved at the time the landfill is
first approved for operation. The plan may, depending upon the
circumstances as determined by the Director, include monitoring
of ground water, surface water, methane gas and air quality. In all
cases, ground water monitoring shall be required unless a qualified
engineer or geologist certifies, based on reliable site-specific
information, that there is no potential for contamination of a drinking
water source outside the landfill boundary as designated by the code or
extended by the Director. Test wells for ground water monitoring,
where required, shall be cased, capped, and shall be at least four
inches in diameter.
(6) Correction of Contamination. If surface or ground water
contamination is discovered, the operator of the site, if not the
Land Use and Environment Department, shall immediately notify the
Director of Land Use and Environment. In all cases of discovery of
surface or ground water contamination, whether the operator is the Land
Use and Environment Department or another, the Director shall:
(a) Within 90 days, determine the cause and extent of
the contamination and
(b) Take steps necessary to correct the cause of the
contamination and eliminate, insofar as practical, the
contamination itself. If contamination of a drinking water
source cannot practically be eliminated in the judgment of the
Director, the operator shall provide an alternative drinking
water supply to any person or persons then using the
contaminated source. If no person is using the groundwater,
the Director may specify such other remedial steps, and may
take such other enforcement action, as he deems appropriate
in the circumstances.
(7) Control of Liquids. Bulk or noncontainerized liquids,
or containers containing liquids, may not be disposed of at any
landfill unless the liquids are household wastes or the containers are
no larger than those commonly found in household use.
(8) Control of Hazardous Waste. All disposal site operators
shall be trained to identify hazardous waste prohibited from disposal
in any landfill. Each disposal site shall establish procedures,
including periodic inspection procedures, to identify and exclude
hazardous waste from the landfill.
(9) Safety. Landfills shall be designed and operated to
insure the safety of persons depositing solid waste and landfill
operation staff.
Section 19-7-112. Closure of Landfills.
(1) As each unit or cell of a designated landfill is filled,
it shall be permanently closed covering the cell or unit with a final
cover system, including at least two feet of earth which is
re-vegetated with nonweedy vegetation and which is designed and placed
in a manner to prevent erosion, poundage, and the infiltration of
liquid through the cover and into the waste.
(2) When a landfill site is no longer able to accept waste,
it shall be closed. The operator, if not the Land Use and
Environment Department, shall inform the Director of its intent to
close the site no sooner than six months prior to closure. Any
operator,
including the Department, shall prepare a closure plan which shall be
submitted to the Director at the same time as the notice of intent to
close is required. The Plan shall be reviewed by the Land Use and
Environmental Commission and approved if it contains the following
components:
(a) Rodent control measures to ensure that rodents do
not leave the site.
(b) Marking the site to indicate that the site is closed
to further dumping and to indicate where an alternative site
is located.
(c) Covering the site with two feet of earth, capable of
maintaining nonweedy vegetation in a manner described in
subsection (1).
(d) Access control mechanisms to ensure no additional
waste is disposed at the facility.
(e) Filling, grading, and draining the site to eliminate
slumping, settling, or poundage of water on the surface of
the site.
(f) Maintaining the site until it has settled and no
further filling, or drainage problems exist; and
(g) Revegetation and maintenance, as required, to
provide adequate cover of nonweedy vegetation to prevent
excessive erosion or runoff.
(h) Continued monitoring of ground and surface water
contamination levels, if the Director determines necessary.
(3) If the operator of a site is other than the Land Use and
Environment Department, the Land Use and Environment Commission shall
require the operator to post a bond sufficient to insure continued
compliance of the Plan with these requirements.
Section 19-7-113. Special Wastes.
(1) Prohibited Materials. The following materials may not be
deposited in a landfill in a refuse can or in a receptacle the contents
of which are to be deposited in a landfill: dead animals weighing over
15 pounds; sewage; human or animal excrement; hot ashes; infectious
wastes; hospital or medical waste; hazardous wastes, except for
household hazardous wastes exempt from federal regulation; radioactive
wastes; explosives; containers previously containing pesticides or
herbicides unless the containers have been cleaned as required to
eliminate substance residue.
(2) Hospital or Medical Waste. Hospital, medical or other
infectious waste must be incinerated at the point of generation or
transferred to another medical facility for
incineration. During transfer, the waste must be carried in specially
marked red plastic bags bearing the words "hospital waste."
Section 19-7-114. Dumping Fees.
(1) The Director, subject to Land Use and Environment
Commission approval, may establish or amend and thereafter may collect
and enforce rates or charges for the dumping any material in a landfill
operated by the Department, either directly or through contractors.
(2) Any person who operates a landfill under permit may
establish rates or charges for the service performed, provided that
such rates or charges shall be subject to review by the Land Use and
Environment Commission upon petition by any person served by the
permitted landfill. Upon such review, the Commission may only alter
the rates charged after hearing, if it finds that they are grossly
unfair and excessive or provide the collector an unnecessarily high
rate of return.
Section 19-7-115. Collection Systems Practices.
(1) General. No person shall collect, transfer, store or
process solid waste, including hazardous waste in a manner that poses
a direct or indirect threat to the public health or to the quality of
the environment. Solid waste collection shall not:
(a) cause disease;
(b) cause air and water pollution; or
(c) otherwise cause pollution of the environment.
(2) Collection Periods. Any waste collection system must
provide for regular, periodic collection of waste on a schedule made
well known to waste generators. Waste collection must occur at least
once weekly and may occur more frequently by agreement between the
collector and the waste generator.
(3) Collection Vehicles. Solid waste shall be collected by
vehicles that are constructed to be readily cleanable and which will
prevent the spillage or leakage of refuse during loading and
transportation to the disposal site.
(4) Preparation of Garbage and Refuse for Collection.
(a) Any collection system shall provide written
instructions to waste generators of the limits and requirements
for preparation of garbage for collection. Minimum
requirements shall include:
(i) All garbage must be placed in garbage containers
of no more than 10 gallons, with lids capable of resisting
entry by rodents and other animals;
(ii) Newspaper and magazines must be made up into
bundles and tied with a strong cord or wire;
(iii) Cardboard boxes and like materials must be
flattened or tied in bundles; all commercial or
government establishments shall keep waste paper and boxes
separate from regular garbage;
(iv) All aluminum must be separated and placed in a
separate bag or other container;
(v) Items prohibited by Section 19-7-113, above,
shall not be placed in garbage containers.
(b) No collection shall be made of:
(i) Burning or smoldering materials;
(ii) Stumps and tree limbs that are more than four
feet in length.
(iii) Large-volume construction and demolition
debris that will not fit in approved
containers;
(iv) Bulky items such as car bodies or parts and
white goods, (washers, dryers, refrigerators
and the like).
(5) Charges for Collection.
(a) The director, subject to approval of the Land Use and
Environment Commission, may establish or amend and thereafter
may collect and enforce rates or changes for any refuse
collection system operated by the Department, either directly or
through contractors.
(b) Any person who operates a collection system under
permit may establish rates or charges for the services
performed, provided that such rates or charges shall be
subject to review by the Land Use and Environment Commission
upon petition by any person served by the permitted collection
agency. Upon such review, the Commission may alter the rates
charged only, if after hearing, it finds that such rates are
grossly unfair and excessive or provide the collector an
unnecessarily high rate of return.
Section 19-7-116. Drop Box Standards.
Collection and disposal systems may include the use of drop
boxes. In all cases, drop boxes shall be designed, located, constructed
and operated so as to:
(1) Be sturdy and constructed of durable, water tight, easily
cleanable material;
(2) Provide effective means to control vectors, such rodents,
insects, birds and other vermin;
(3) Be adequately screened, fenced, or otherwise arranged so
as to prevent blowing of litter and provide effective means to control
litter;
(4) Be in readily accessible locations with access provided by
all-weather roads and vehicular areas;
(5) Be adequately signed to advise those using the facility of
the standards for preparation and/or separation of deposited materials
(which shall be the same as the requirements in Section 19-7-115(4)(a))
of the materials which are prohibited from deposit (which shall be the
same as the requirements in Section 19-7-115(4)(a)) and advise the
public that all materials must be placed in the drop-box;
(6) Be designed, sized, and serviced as often as necessary to
ensure adequate dumping capacity at all times;
(7) Include a separate location and drop-box for aluminum and
any other materials which the Plan calls for recycling.
Section 19-7-117. Permits Required to Operate Disposal Sites and
Collection Systems.
(1) The Land Use and Environment Department may operate
landfills and solid waste collection systems pursuant to the standards
and requirements of this Chapter. No other person may operate a
landfill or collection system (except for collection of his own wastes)
without first obtaining a permit.
(2) Except as specifically provided for or modified in this
Chapter, the procedures set forth in Sections 19-5-102 and 19-5-105,
above, shall govern the consideration and issuance of any permit under
this Chapter.
Section 19-7-118. Permits to Operate Solid Waste Disposal Sites.
(1) Petition for Permit to Operate Solid Waste Disposal Site.
If the Solid Waste Management Plan includes provisions for landfill
sites not operated by the
Land Use and Environment Department, any person may petition for a
permit to operate a disposal site in accordance with the procedures set
forth in Section 19-5-102. In addition to the information required by
Section 19-5-102(2), an application for a permit to construct and
operate or alter a landfill site shall include the following:
(a) A general description of the facility;
(b) A map and aerial photograph of the area to be used for
the fill showing land use and, where applicable, zoning within
2,000 feet of the solid waste disposal site. The map and
aerial photograph shall be of sufficient scale to show all
homes, wells, water ways, topography, roads, and other objects
that may be affected.
(c) A report indicating the following:
(i) The population and area to be served by the
proposed site and life expectancy of the facility;
(ii) Kind, quantity and source of solid waste to be
disposed at the site;
(iii) The geological formation and groundwater
elevations to a depth of at least twice the height of the
proposed landfill below the lowest elevation of the site.
Such data will be obtained by soil boring and other
appropriate means;
(iv) The source and characteristics of cover
material to be used;
(v) Reliable data on existing ground water quality
within 2,000 feet of the site;
(vi) Topography of the site and drainage patterns.
(d) A design and plan of operations for the facility,
certified by a professional engineer, which identifies how each
landfill location, design, performance and operating standard
in this Title shall be met through design, construction, and
operation of the disposal site. The design shall include, as
well, one or more topographic maps at a scale of not over two
hundred feet to the inch. Contour intervals shall not exceed
ten feet. The maps should show proposed fill area, borrow
areas, access roads, drainage areas, fencing, equipment and
buildings.
(e) A plan for closure of the facility, certified by a
professional engineer, explaining how each closure standard in
this Title shall be met and how post-closure activities will
be performed.
(f) A financial statement, estimating the cost of
construction, operation and closure of the site, explaining the
applicant's financial condition and the applicants' ability to
fund the continued operation and closure of the site.
(2) Issuance of Permit to Operate Solid Waste Disposal Site.
Within 180 days of submission of a complete application for a permit and
in accordance with the procedures identified in Section 19-5-105, the
Land Use and Environment Commission shall issue or deny a permit. The
Commission may issue a permit only if it finds, on the basis of
information contained in the application and otherwise available to it,
that the proposed landfill will comply with the standards contained in
this Chapter and that the applicant has the financial and technical
ability of the applicant to construct, operate, and close the landfill
in a manner consistent with this Chapter. The burden of proof shall
rest on the applicant to demonstrate compliance with these requirements.
In issuing any permit, the Commission may design or condition the
permit to accomplish the goals of this Title.
(3) Term of Permit to Operate Solid Waste Disposal Site.
Permit terms shall be established by the Commission based on the
expected useful life of the solid waste disposal site but in no case
shall the permit term exceed 15 years. If the disposal site can, within
the terms of this Chapter, continue to operate after the permit term, a
permittee may apply for a new permit six months before the term ends.
The basis and procedures for grant of an additional permit shall be the
same as for the original permit.
Section 19-7-119. Permits Required to Operate Collection System.
(1) Application for Permit to Operate Collection System. If
the Solid Waste Management Plan approved by the commission allows
private collection systems any person may apply to operate a solid
waste collection system on part or all of the Reservation. An
application for a collection system permit must include:
(a) A description of the collection territory proposed to
be served, including the number of household, business, or
other generators of solid waste within that territory;
(b) A list of those households, businesses, or other
generators of solid waste that have already requested or agreed
to be served by the applicant, and the price for service they
agreed to pay;
(c) A financial description of the applicant, together
with an analysis of the cost of the proposed collection
service, the expected revenue from billings for the service,
and expected rate of return for the activity.
(d) A description of the collection routes, timing,
methods and equipment to be used and how the proposed system
will comply with all the standards set forth in this Title.
(e) Designation of the disposal site proposed to be used
for waste collected.
(2) Issuance of Permit to Operate Collection System. Within 45
days of receiving a complete permit application, the Land Use and
Environment Commission shall either grant or deny a collection system
permit. The Commission shall grant a permit only if it finds, on the
basis of information contained in the application and otherwise
available to it, that the proposed collection system will comply with
the standards of this Title and that the applicant has demonstrated that
the proposed system likely can sustain its operations financially. In
issuing any permit, the Commission may design or condition the permit
to accomplish the goals of this Title.
(3) Term of Permit to Operate Collection System. Permit terms
shall be for not less than one nor more than three years. A collection
system permit shall grant the permittee an exclusive right to collect
waste within the territory or from the waste generators identified in
the permit terms. No other permits shall be issued for similar
territory or generators during the term of the first permit issued for
that territory or those generators unless and |