09-01-80
MODEL TRIBAL ENVIRONMENTAL CODE
(MTEC)
NATIVE AMERICAN RIGHTS FUND
1506 Broadway
Boulder, Colorado 80302
(303) 447-8760
September 1980
TABLE OF CONTENTS
Memorandum......................................................
Introduction...................................................1
Water Pollution Control Ordinance..............................5
Waste Management Ordinance....................................53
Underground Injection Control Ordinance.......................61
Air Pollution Control Ordinance...............................76
Radiation Control Ordinance..................................101
Noise Control Ordinance......................................107
NATIVE AMERICAN RIGHTS FUND
MEMORANDUM
TO: Tribal Chairpersons, Attorneys, Friends
RE: Model Tribal Environmental Code (MTEC)
FROM: John E. Echohawk
DATE: September 1980
In response to tribal interest in energy resource
development and environmental management, we are pleased to provide
you a set of Model Tribal Ordinances for environmental regulation.
Included are models for Water Pollution Control, Waste Management,
Underground Injection Control, Air Pollution Control, Radiation, and
Noise Control.
These Model Ordinances were prepared for NARF under a grant from
the Administration for Native Americans (ANA) and much of the work was
done by a consultant, Duane T. Bird Bear. Mr. Bird Bear works with
the U. S. Environmental Protection Agency (EPA) in Denver, and his
contribution to this project is in his private capacity and his work
should not be interpreted as reflecting agency policy nor that of ANA.
The Ordinances that follow are only models to be used in drafting
reservation-specific legislation. Tribal leaders will need to make
basic policy decisions about environmental management; applicable
statutes and treaties must be researched; existing tribal
environmental protection Ordinances must be examined, as well as
tribal constitutions and by-laws before draft Ordinances can be
adopted as final tribal laws.
We are encouraged by the growing interest of tribes to maintain
and enhance reservation environmental quality. We hope that the
following Model Ordinances will assist this process.
INTRODUCTION
On June 16, 1980, the Native American Rights Fund, Inc., of
Boulder, Colorado sent tribal chairpersons, tribal attorneys, and
other interested persons draft copies of the "Model Tribal
Environmental Ordinances" for comment. The draft ordinances were
prepared for NARF by its consultant, Duane T. Bird Bear, as part of a
larger program administered by NARF through a grant from the
Administration for Native Americans (ANA). Recommended changes have
been made in this, the final draft.
Methodology. The decade of the 1980s may well be a period
of extensive development of natural resources on many Indian
reservations. Economic benefits for Indian tribes, employment
opportunities for individual tribal members, and other incentives must
be weighed against the attendant costs of the disruption of
often-fragile eco-systems within reservation areas. Without proper
management, dramatic increases in the number of pollution sources
within reservations both in terms of the direct impact from mining,
drilling and electrical generation as well as from the secondary
impacts associated with sudden population growth and shifts, will
outstrip the capacity of the earth, the air, and the water to mitigate
the effects of artificially induced pollution.
Decisions whether to develop reservation resources of coal,
oil and gas, uranium, etc. and at what pace are rightfully, we
believe, decisions for the tribes, and the people comprising the
tribes, to make. Written history of the western tradition of using
technologically-advanced processes to maximize energy development is
replete with instances of large-scale devastation of natural
resources. Only in recent times has attention focused on building in
safeguards into the development process designed primarily to protect
human health. Debate continues about whether various standards set
for specific pollutants are too lax and only minimally protect human
health, or, conversely whether such standards are overly stringent so
as to discourage industrial development in a nation where gross energy
consumption is ever-increasing.
Drafting legislation is never easy. Drafting uniform
environmental legislation for tribes with differing economic
philosophies is probably impossible, for the reason that quantifiable
limits for pollutants will vary. A tribe interested in protecting the
pristine quality of air will probably establish strict standards for
sulphur dioxides, particulates, nitrogen oxides, and visibility.
Another tribe interested in mine-mouth electrical generation will
adopt standards for the same pollutants which will allow for some air
quality degradation.
Water Quality. In the June 16, 1980, draft of the Model
Tribal Environmental Ordinance package, there appeared a water quality
ordinance which established specific limitation for temperature,
turbidity, pH, alkalinity, and fecal coliform, among other things.
This Model Ordinance was primarily geared toward preserving a certain
standard of in-stream water quality for fish production and
propagation.
Since that time the drafter has received several comments
from tribes where salmonid fish production is not feasible or where
water scarcity requires almost total diversion for other beneficial
uses. Acknowledging that wide geographical disparity between
reservation areas dictates differing tribal uses of water, the Water
Pollution Control Ordinance has been re-drafted to allow
tribal-specific decisions about appropriate standards for reservation
waters. Ultimately, it is for the tribal governments, and the people,
to decide policy questions associated with water quality. The present
Model Ordinance allows tribes to establish, through rule-making
powers, reservation-specific standards for specified pollutants.
This change makes the Water Quality Ordinance consistent
with provisions of other Ordinances, especially the one dealing with
air quality. One common characteristic of both ordinances is the
attempt to build in minimum due process safeguards in order to
effectuate the mandate of the Indian Civil Rights Act of 1968.
Other changes included revising the numbering of the
sections comprising the Water Quality Ordinance, correcting numerous
typographical errors, and adding a "severability" section to all
ordinances.
Summary. Over the past several decades, there have been
established national standards for various pollutants. Organic
legislation directing the U.S. Environmental Protection Agency and
other federal agencies to work with states to achieve effective
pollution control under these standards often mentioned Indian tribes
and reservations only in passing, if at all. Without legislative
clarification, questions will doubtlessly arise as to the extent of
the applicability of federal environmental laws to Indian tribes and
on-reservation energy-resource development.
Yet it is clear that major policy decisions concerning
reservation environments will be made not in Washington, Denver, or
San Francisco, but in places like Window Rock, Browning and Lame Deer.
It is our hope that the following Model Tribal Environmental
Ordinances will be of assistance to the tribes in implementing these
policy decisions.
Duane T. Bird Bear
September 12, 1980
WATER POLLUTION CONTROL ORDINANCE
WATER POLLUTION CONTROL
Section 1000. Pollution of Waters - Public Policy of the Tribe.
(a) Whereas the pollution of the waters of this reservation
constitutes a menace to public health and welfare,
creates public nuisances, is harmful to wildlife, fish
and aquatic life, and impairs domestic, agricultural,
industrial, recreational, traditional, cultural, and
other legitimate beneficial uses of water, and whereas
such pollution is contrary to the best interest of the
________________Tribe(s), it is hereby declared to be
the public policy of the Tribes to protect, maintain,
and improve the quality thereof for public water
supplies, for the propagation of wildlife, fish, and
aquatic life, and for domestic, agricultural,
industrial, traditional, cultural, recreational, and
other beneficial uses; to provide that no waste be
discharged into any waters of the reservation without
first being given the degree of treatment necessary to
protect the legitimate beneficial uses of such waters;
to provide for the prevention, abatement, and control
of new or existing water pollution; to place in
priority those control measures directed toward the
elimination of pollution which creates hazards to
public health; to insure due consideration of financial
problems imposed on water polluters through the pursuit
of these objectives; and to cooperate with other
agencies of the Tribes, states, and agencies of states,
and the federal government in carrying out these
objectives.
Section 1001. Definitions - For purposes of this Act, the following
words and phrases shall have the meanings ascribed to
them in this section:
(a) "Pollution" means such artificial or induced
natural contamination, or other alteration of the
physical, chemical, biological, and radiological
properties, of any waters of the reservation, or
such discharge of any liquid gaseous, or solid
substance into any waters of the reservation as
will create a nuisance or render such waters
harmful or detrimental or injurious to public
health, safety, welfare, or to domestic,
commercial, industrial, agricultural, traditional,
cultural, recreational, or other legitimate
beneficial uses, or to livestock, wild animals,
birds, fish or other aquatic life.
(b) "Waters of the reservation" means all streams,
lakes, ponds, marshes, watercourses, waterways,
wells, springs, irrigation systems, drainage
systems, and all other bodies or accumulations of
water, surface and underground, natural or
artificial, public or private, which are contained
within, flow through, or border upon this federal
Indian reservation or any portion thereof, except
that bodies of water confined to and retained
within the limits of private property which do not
develop into or constitute a nuisance, or a public
health hazard, or a menace to fish and wildlife,
shall not be considered to be "waters of the
reservation" under this definition.
(c) "Person" means an individual, corporation,
partnership, association, state, or political
subdivision thereof, federal agency, state agency,
municipality, commission or interstate body.
(d) "Pollutant" means dredged spoil, dirt, slurry,
solid waste, incinerator residue, sewage, sewage
sludge, garbage, trash, chemical waste, biological
nutrient, biological material, radioactive
material, heat, wrecked or discarded equipment,
rock, sand, or any industrial, municipal, or
agricultural waste.
(e) "Pollution" means artifically made, artifically
induced, or natural alteration of the physical,
chemical, and radiological integrity of water.
(f) "Effluent limitation" means any restriction or
prohibition established under tribal law on
quantities, rates, and concentrations of chemical,
physical, biological, and other constituents which
are discharged from point sources into reservation
waters, including but not limited to standards of
performance for new sources, toxic effluent
standards, and schedules of compliance.
(g) "Permit" means a permit issued under this article.
(h) "Point source" means any discernible, confined and
discrete conveyance, including but not limited to
any pipe, ditch, channel, tunnel, conduit, well,
discrete fissures, containers, rolling stock,
concentration animal feeding operation, or vessel
or other floating craft, from which pollutants are
or may be discharged.
(i) "Schedule of Compliance" means a schedule of
remedial measures and times including an
enforceable sequence of actions or operations
leading to compliance with any control regulation
or effluent limitation.
Section 1002. Water Quality Control Commission.
(a) There is hereby created a tribal water quality control
commission, as a division of the tribal department of
________________, and the Commission shall exercise its
power and perform its duties and functions specified in
this article, which Commission shall consist of eight
persons. It shall include the heads of the tribal
Departments of Natural Resources, Game and Fish, Human
Services, and the Tribal Health Board, and four
reservation residents appointed by the tribal
chairperson with the consent of the Tribal Council.
Appointments must be made so as to include appropriate
agricultural, wildlife, industrial, cultural training
within its own membership; although no specific number
of its members shall be required to be so trained,
although a majority of members must be officially
enrolled members of the tribe(s).
(b) Of the four members appointed by the tribal
chairperson, each shall serve four year terms, except
of those first four appointed, one shall be appointed
for two years, one shall be appointed for three years,
and two shall be for four years. The tribal
chairperson may fill any vacancy in the appointed
membership of the Commission, and may remove any
appointed member for cause.
The heads of tribal departments may designate an
administrative staff member to perform the duties of
the member making the designation.
(c) Each member of the Commission not otherwise in the
full-time employment of the tribe shall receive a per
diem of forty ($40) dollars for each day actually and
necessarily spent in the discharge of official duties,
but not to exceed twelve hundred ($1,200) dollars in
any one year; and all members shall be reimbursed for
necessary travel and other expenses incurred in the
performance of their official duties.
(d) The tribal department shall provide the Commission with
copies of maps, plans, documents, studies, surveys, and
all other necessary information in order that the
Commission may be fully cognizant of natural resource
development, population growth, the status of water
pollution and its control in the reservation and to
enable the Commission to advise the department in
development of programs for the prevention and control
of pollution of the waters of the reservation, which
material shall remain the property of the department.
(e) All members of the Commission shall have a vote. Five
members shall constitute a quorum, and the concurrence
of a majority of a quorum of the Commission in any
matter within its powers and duties shall be required
for any determination made by the Commission.
Section 1003. Duties of Water Quality Control Commission.
(a) The Commission shall develop and maintain a
comprehensive and effective program for prevention,
control, and abatement of water pollution and for water
quality protection throughout the entire reservation
and, in connection therewith, shall have, and may
exercise, the following powers and duties:
(1) Classify waters of the reservation in accordance
with section 1004;
(2) Promulgate water quality standards in accordance
with section 1005;
(3) Promulgate control regulations in accordance with
section 1006;
(4) Promulgate waste discharge permit regulations in
accordance with section 1023-1025;
(5) Perform duties assigned to the Commission in
section 1007 with respect to the location, design,
construction, and operation of individual sewage
disposal systems;
(6) Review applications for underground detonations
and discharges in accordance with section 1026;
(7) Review from time to time, at intervals of not more
than three years, classification of waters, water
quality standards, and control regulations which
it has promulgated; and
(8) Perform other duties as may be lawfully assigned
to it.
(b) The Commission's authority shall be broad and flexible
to the end that the policy of this tribe as declared in
section 1000 shall be effectively carried out.
(c) The Commission and the tribal health board shall hold a
joint public meeting during the month of October of
each year in order to hear public comment on water
pollution problems within the reservation, alleged
sources of water pollution within the reservation, and
the availability of practical remedies therefor.
(d) On or before December 1 of each year, the Commission
shall report to the tribal chairperson on the
effectiveness of the provisions of this article in
carrying out the legislative intent, as declared in
section 1000, and shall include in such report such
recommendations as it may have with respect to any
legislative changes that may be needed or desirable.
Section 1004. Classification of the Waters of the Reservation.
(a) The Commission shall classify all waters of the
reservation.
(b) The types of classes shall be determined by regulations
and may be based upon or intended to indicate or
describe any relevant characteristic such as:
(1) The existing extent of pollution or the maximum
contaminant level to be tolerated as a goal;
(2) Whether or not pollution arises from natural
sources;
(3) Present uses of the water, the uses for which the
water is suitable in its present condition, or the
uses for which it is to become suitable as a goal;
(4) The character and uses of the land bordering the
water;
(5) The need to protect the quality of the water for
human purposes, including cultural and traditional
religious purposes, and also for the protection
and propagation of wildlife or aquatic life; or
(6) Type and character of the water such as surface or
subsurface, lake, stream or ditch, volume flow,
depth, stream gradient, temperature, surface area
involved, and daily or seasonal variability of any
such characteristics.
(c) The particular class into which any segment of
reservation waters is placed shall be determined by
regulation.
Section 1005. Water Quality Standards.
(a) Water quality standards shall be promulgated by the
Commission by regulations which describe water
characteristics or the extent of specifically
identified pollutants for waters of the reservation.
(b) Water quality standards may be promulgated with respect
to any measurable characteristic of water, such as:
(1) Toxic substances;
(2) Suspended solids, colloids, and combinations of
solids with other suspended substances;
(3) Bacteria, fecal coliform, fungi, viruses, and
other biological constituents and characteristics;
(4) Dissolved oxygen, and the extent of oxygen
demanding substances;
(5) Phosphates, nitrates, and other dissolved
nutrients;
(6) pH and hydrogen compounds;
(7) Chlorine, heavy metals, and other chemical
constituents;
(8) Salinity, acidity, and alkalinity;
(9) Trash, garbage, oil and grease, and other foreign
material;
(10) Taste, odor, color and turbidity; and
(11) Temperature.
Section 1006. Control Regulations.
(a) The Commission shall promulgate control regulations for
the following purposes:
(1) To describe prohibitions, standards,
concentrations, and effluent limitations on the
extent of specifically identified pollutants, such
as any of those mentioned in section 1005 that any
person may discharge into any specified class of
reservation waters;
(2) To describe pre-treatment requirements,
prohibitions, standards, concentrations, and
effluent limitations on waste any person may
discharge into any specified class of water of the
reservation from any facility, process, activity,
or waste pile including but not limited to:
pulp and paper mills;
paperboard, builders paper and board mills;
meat product and rendering processing;
dairy product processing;
grain mills;
canned and preserved fruits and vegetables
processing;
sugar processing;
textile mills;
cement manufacturing;
feedlots;
electroplating;
organic chemicals manufacturing;
plastic and synthetic materials manufacturing;
soap and detergent manufacturing;
fertilizer manufacturing;
oil and gas transportation;
petroleum refining;
iron and steel manufacturing;
nonferrous metals manufacturing;
phosphate manufacturing;
electric power plants;
ferroalloy manufacturing;
leather tanning and finishing;
glass and asbestos manufacturing;
rubber processing; and
timber products processing.
(3) To describe precautionary measures, both mandatory
and prohibitory, that must be taken by any person
owning, operating, conducting, or maintaining any
facility process, activity, or waste pile that
does or might cause pollution of any waters of the
reservation in violation of control regulations or
cause the quality of any waters of the reservation
to be in violation of any applicable water quality
standard.
(b) In the formulation of each control regulation, the
Commission shall consider the following:
(1) The need for regulations that control discharges
of specified pollutants that the the subject of
water quality standards for the receiving waters
of the reservation;
(3) The degree to which any type of discharge is
subject to treatment, the availability,
practicality, and technical and economic
feasibility of treatment techniques; and the
extent to which the discharge to be controlled is
significant;
(4) The continuous, intermittent, or seasonal nature
of the discharges to be controlled;
(5) Whether a regulation that is to be applicable to
discharges into flowing water should be written in
such a way that the degree of pollution tolerated
or treatment required will be dependent upon the
volume of flow of the receiving water or the
extent to which the discharge is diluted therein,
or the capacity of the receiving water to
assimilate the discharge; and
(6) The need for specification of safety precautions
that should be taken to protect water quality
including, but not limited to, requirements for
the keeping of logs and other records,
requirements to protect subsurface waters in
connection with mining exploration and surface
mining and the drilling and operation of wells,
and requirements as to settling ponds, holding
tanks, and other treatment facilities for water
that will or might enter reservation waters.
(d) The Commission shall coordinate the cooperate with the
tribal attorney, the tribal health board, natural
resource and energy development offices having
regulatory powers in order to avoid promulgating
control regulations that would be either redundant or
unnecessary.
Section 1007. Individual Sewage Disposal System.
(a) Upon request of any person, the Commission shall review
the adequacy of local community control of individual
sewage disposal systems that are applicable in any
portion of the reservation in which the soil,
geological conditions, or other factors indicate the
unregulated outflow from one or more individual sewage
disposal systems would or might pollute the waters of
the reservation. After such review and upon any
finding of inadequacy, the Commission shall promulgate
a control regulation for the area involved which shall
identify such area by legal description and shall also
specify the terms and conditions for individual sewage
disposal systems construction, use, design,
maintenance, spacing, and location that shall be
applicable in such area.
Section 1008. Additional Authority of the Commission.
(a) In addition to the powers and duties of the Commission
specified elsewhere, the Commission is empowered to:
(1) Accept and supervise the administration of loans
and grants from the federal government and from
other public sources, which loans and grants shall
not be expended for other than purposes for which
provided;
(2) Advise, consult, cooperate, and enter into
agreements with other agencies of the tribe(s),
the federal government, states, and other tribes,
and with groups and industries affected by the
provisions of this article and policies of the
Commission, but any such agreement involving
authorizing or requiring compliance in this
reservation with any water quality standard or
control regulation shall not be effective unless
or until the Commission has presented the public
with an opportunity for a hearing with respect to
such standard or regulation and has adopted the
same in compliance with section 1018; and
(3) Exercise all incidental powers necessary and
proper for carrying out the purposes of the
article including the powers to issue and enforce
rules and orders.
Section 1009. Administration of Water Quality Control Programs.
(a) The tribal division of natural resources shall
administer and enforce the water quality control
programs adopted by the Commission.
Section 1010. Duties of the Division.
(a) The Division shall:
(1) Carry out the enforcement provisions of this
article, including enforcement or civil penalty
provisions, criminal prosecution of violators and
such other administrative and judicial relief as
may be appropriate;
(2) Administer the waste discharge permit system as
provided in section 1023 to 1027;
(3) Monitor waste discharges and the waters of the
waters of the reservation as provided in section
1011; and
(4) Submit an annual report to the Commission as
provided in section 1013.
Section 1011. Monitoring.
(a) The Division shall take such samplings as may be
necessary to enable it to determine the quality of
every reasonably accessible segment of reservation
waters. In sampling such waters the Division shall
give consideration to characteristics such as those
listed in section 1005(b), but if pollution is
suspected the sampling shall not be limited or
restricted by reason of the fact that no water quality
standard has been promulgated for the suspected type of
pollution.
(b) As to every segment of reservation waters so sampled,
the Division shall endeavor to determine the nature and
amount of each pollutant, whether a new or different
water quality standard is needed, the source of each
pollutant, the place where such pollutant enters the
water, and the names and addresses of each person
responsible for or in control of each entry.
(c) As to each separate pollution source identified, the
Division shall:
(1) Determine what control regulation is applicable,
if any;
(2) Determine whether the discharge is covered by a
permit and whether any condition of the permit is
being violated; and
(3) Determine what further control measures with
respect to such pollution source are practicable.
(d) The Division shall inform the Commission of any unusual
problem which creates difficulties in abating pollution.
Section 1012. Monitoring, Reporting and Recording.
(a) The owner or operator of any facility, process or
activity from which a discharge of pollutants is made
into waters of the reservation or into any publicly
owned treatment works shall in such form and in
accordance with such specifications as the Division may
require:
(1) Establish and maintain records;
(2) Make reports;
(3) Install, calibrate, use and maintain methods and
equipment, including biological monitoring methods;
(4) Sample discharges; and
(5) Provide additional reasonably available
information relating to discharges into publicly
owned treatment works.
Section 1013. Annual Report to the Commission.
(a) On or before November 1 of each year, the Division
shall report to the Commission on the effectiveness of
the provisions of this article and shall include in
such report such recommendations as it may have with
respect to any regulatory or legislative changes that
may be needed or desired. Such report shall contain
the then current information that has been obtained
pursuant to section 1011.
Section 1014. Authority to Enter and Inspect Premises and Records.
(a) The Division, through its authorized employees, has the
power, upon presentation of proper credentials, to
enter and inspect at any reasonable time and in a
reasonable manner any property, premise, or place for
the purpose of investigating any actual, suspected, or
potential source of water pollution, or ascertaining
compliance or noncompliance with any control regulation
or any order promulgated under this article. Such
entry is also authorized for the purpose of inspecting
and copying of records required to be kept concerning
any effluent source.
(b) If such entry or inspection is denied or not consented
to, the Division is empowered to and shall obtain from
the tribal court for the district in which such
property, premise, or place is located, a warrant to
enter and inspect any such property, premise, or place
prior to entry and inspection. The tribal courts of
the __________ tribe(s) are empowered to issue such
warrants upon a proper showing of the need for such
entry and inspection.
Section 1015. Emergencies.
(a) Whenever the Division determines, after investigation,
that any person is discharging or causing to be
discharged or is about to discharge into any state
waters, directly or indirectly, any pollutant which in
the opinion of the Division constitutes a clear,
present, and immediate danger to the health or
livelihood to members of the public, the Division shall
issue its written order to said person that he must
immediately cease or prevent the discharge of such
pollutant into such waters and thereupon such person
shall immediately discontinue such discharge.
Concurrently with the issuance of such order the
Division may seek a restraining order or injunction
pursuant to section 1034.
Section 1016. Additional Authority and Duties of the Division.
(a) In addition to the authority specified elsewhere in
this article, the Division has the power to:
(1) Conduct or cause to be conducted studies, research
and demonstrations with respect to water pollution
and control, abatement, or prevention thereof, as
requested by the Commission;
(2) Furnish technical advice and services relating to
water pollution problems and control techniques;
(3) Designate one or more persons or agencies in any
area of the reservation as an agent of the
Division, to exercise and perform such powers and
duties of the Division as may be specified in such
designation;
(4) To certify, when requested, the existence of any
facility, land, building, machinery, equipment,
treatment works, sewage and disposal systems, as
have been acquired, constructed, or installed in
conformity with the purposes of this article; and
(5) To take such action in accordance with rules and
orders promulgated by the Commission as may be
necessary to prevent, abate, and control pollution.
(b) All fees and penalties collected by the Division shall
be transmitted to the Tribal Finance Office in a timely
manner for deposit to the credit of the tribal general
fund.
Section 1017. Authority and Procedures for Hearings.
(a) The Commission or Division may hold public hearings,
issue notices of hearings, issue subpoenas requiring
the attendance of witnesses and the production of
evidence, administer oaths, take such testimony as is
deemed necessary, make findings and determinations, and
issue orders, all in conformity with this article.
(b) The Commission may adopt such rules and regulations
governing procedures and hearings before the Commission
or Division as may be necessary to assure that such
hearings will be fair and impartial.
(c) At any hearing, any person who is affected by the
proceeding and whose interests are not already
adequately represented, shall have the opportunity to
be a party thereto upon prior application to and in the
sole discretion of and approval by the Commission or
Division, as the case may be, and such person shall
have the right to be heard and to cross-examine any
witness.
(d) After due consideration of the written and oral
statements, the testimony, and the arguments presented
at any such hearing, the Commission or Division, as the
case may be, shall enter its written findings and final
order, based upon evidence in the record.
(e) In all proceedings before the Commission or Division
with respect to any alleged violation of any control
regulation, permit or order, the burden of proof shall
be upon the Division.
(f) The Commission or Division may designate a hearing
officer who shall have the power to issue notices of
hearing, to issue subpoenas requiring the attendance of
witnesses and the production of evidence, to administer
oaths, and to take such testimony as may be necessary
and such hearing officer shall certify and file
recommended findings and conclusion and a proposed
order with the Commission or Division as appropriate,
for adoption or modification by such Commission or
Division. If the hearing for which a hearing officer
is to be designated is a hearing for the purpose of
developing control regulations or for the purpose of a
hearing held pursuant to section 1024, the hearing
officer may be an employee of the Division.
Section 1018. Procedures to be Followed in Setting Standards and
Control Regulations.
(a) Prior to promulgating any water quality standard and or
any control regulation affecting the waters of the
reservation and authorized by this article, the
Commission shall allow the public the opportunity for a
hearing thereon. Notice to the public shall be given
at least sixty (60) days prior to the date determined
to be the last day to receive comments, both written
and oral, from all persons. Such notice shall include
each proposed regulation, and shall be mailed to all
persons who have filed with the Commission a written
request to receive such notices.
(b) Any person desiring to propose a regulation differing
from any regulation proposed by the Commission shall
file such other written proposal with the Commission
not less than twenty (20) days prior to the date
established, under subsection (a) of this section, as
the closing date for public comment, and, when on file,
such proposal shall be open for public inspection
during regular business hours.
(c) Witnesses at any hearing of the Commission shall be
subject to cross-examination by or on behalf of the
Commission, and by or on behalf of persons who have
proposed regulations pursuant to subsection (b) of this
section.
(d) Regulations promulgated pursuant to this section shall
not take effect until thirty (30) days after they have
been filed with the secretary, Tribal Business Council.
Section 1019. Administrative Reconsideration.
(a) Any party directly affected by an order or
determination of the Commission or Division shall have
thirty (30) days from the effective date to seek
judicial review. During the time permitted for seeking
judicial review, the party seeking judicial review
shall apply to the Commission or Division, as
appropriate for a hearing or rehearing with respect to,
or reconsideration of, such order or determination.
The determination by the Commission or Division whether
to grant or deny the application for a hearing,
rehearing, or reconsideration shall be made within ten
(10) days after receipt by the Commission or Division.
Such determination by the Commission may be made by
telephone, mail, or at a meeting. If the application
for a hearing, rehearing or reconsideration is granted,
then the order or determination to which such
application pertains shall not be considered final for
purposes of judicial review, and the Commission or the
Division may affirm, reverse, or modify, in whole or in
part, the pertinent order or determination shall be
final, and not subject to stay or reconsideration under
this section.
Section 1020. Enforcement Hearings - Judicial Review.
(a) Any final order or determination by the Division or the
Commission shall be in writing, supported by written
findings, and subject to judicial review in accordance
with the provisions of this article and any other
applicable provisions of the tribal code or tribal
court rules of civil procedure.
(b) Any proceeding for judicial review of any final order
or determination of the Division or the Commission
shall be filed in the tribal court for the judicial
district in which is located the pollution source
affected, and shall be filed within thirty (30) days
after said order or determination has been served upon
the party affected. Such period shall be stayed while
any application for a hearing, rehearing, or
reconsideration is pending pursuant to section 1019.
(c)(1) Except with respect to emergency orders issued
pursuant to section 1015, any person to whom a cease
and desist order, clean-up order, or other order has
been issued by the Division or Commission, or
against whom an adverse determination has been made,
may petition the tribal court for a stay of the
effectiveness of such order or determination. Such
petition shall be filed in the tribal court in which
is located the pollution sources.
(2) Such petitions may be filed prior to any such order
or determination becoming final or during any period
in which is located the pollution sources affected.
(3) Such stay shall be granted by the court if there is
probable cause to believe that refusal to grant a
stay will cause serious harm to the affected person
or any other person, and:
(a) That the alleged violation or activity to which
the order or determination pertains will not
continue, or if it does continue, any harmful
effects on waters of the reservation will be
alleviated promptly after the cessation of the
violation or activity; or
(b) That the refusal to grant a stay would be
without sufficient corresponding public benefit.
(d) Any party may move the court to remand the case to the
Division or the Commission in the interests of justice,
for the purpose of adducing additional specified and
material evidence and findings thereon; but the burden
shall be on such party to show reasonable grounds for
the failure to adduce such evidence previously before
the Division or Commission.
(e) If the court does not stay the effectiveness of an
order of the Commission or Division, the court shall
enforce compliance with that order by issuing a
temporary restraining order or injunction at the
request of the Commission or Division.
Section 10211. Samples; Secret Processes
(a) If samples of water or water pollutants are taken for
analysis and a violation of any permit or control
regulation is suspected, a representative portion of
the same shall be furnished at cost upon request to the
person who is believed to be responsible for such
suspected violation. A representative portion of such
sample shall be furnished to any suspected violator at
cost whenever any remedial action is taken with respect
thereto by the Division. A duplicate of every
analytical report pertaining to such sample shall be
furnished as soon as practicable to such person.
(b) Any information relating to any secret process, method
of manufacture or production, or sales or marketing
data, which may be acquired, ascertained, or
discovered, whether in any sampling investigation,
emergency investigation, or otherwise, shall not be
publicly disclosed by any member, officer, or employee
of the Commission or Division, but shall be kept
confidential. Any person seeking to invoke the
protection of this section in any hearing shall bear
the burden of proving its applicability. This section
shall never be interpreted as preventing full
disclosure of effluent data.
Section 1022. Rules of Civil Procedure - Applicability.
(a) Except as otherwise specified in this article, service
or process, notices, and other papers shall be in
accordance with the rules of civil procedure
established for the tribal court.
PERMITS
Section 1023. Permits Required for Discharge of Pollution
- Administration.
(a) No person shall discharge any pollutant into any
reservation water from a point source without first
having applied for, nor after December 31, 198__,
without having obtained a permit from the Division for
such discharge. Each application for a permit duly
filed under the federal Clean Water Act shall be deemed
to be a permit application filed under this article,
and each permit issued pursuant to the federal Act
shall be deemed to be a temporary permit issued under
this article which shall expire when the federal permit
expires.
(b) The tribe shall examine applications for and may issue,
suspend, revoke, modify, deny, and otherwise administer
permits for the discharge of pollutants into
reservation waters. Such administration shall be in
accordance with the provisions of this article and
regulations, if any, promulgated by the tribe.
(c) The tribe shall promulgate such regulations as may be
necessary for the orderly and effective administration
of permits for the discharge of pollutants. Such
regulations shall be consistent with the provisions of
this article and shall be in furtherance of the policy
contained in section 1000, and may pertain to and
implement, among other matters, permit and permit
applications contents, procedures, requirements, and
restrictions with respect to the following:
(1) Identification and address of the owner and
operator of the activity, facility, or process
from which the discharge is to be permitted;
(2) Location and quantity and quality characteristics
of the permitted discharge;
(3) Effluent limitations and requirements for
treatment prior to discharge;
(4) Equipment and procedures required for mandatory
monitoring as well as record-keeping and reporting
requirements;
(5) Schedules of compliance;
(6) Procedures to be followed by tribal personnel for
entering and inspecting premises;
(7) Submission of pertinent plans and specifications
for the facility, process, or activity which is
the source of the waste discharge;
(8) Restrictions on transfer of the permit;
(9) Procedures to be followed in the event of
expansion or modification of the facility,
process, or activity from which the discharge
occurs or the quantity, quality, or frequency of
the discharge;
(10) Duration of the permit not to exceed five years,
and renewal procedures;
(11) Authority of the Tribe to require changes in
plans for specifications for control facilities
as a condition for the issuance of a permit;
(12) Identification of control regulations over which
the permit takes precedence and identification of
control regulations over which a permit may never
take precedence;
(13) Notice requirements of any intent to construct,
install, or alter any process, facility, or
activity that is likely to result in a new
altered discharge; and
(14) Effectiveness under this Article of permit
applications submitted to and permits issued by
the federal government under the federal Clean
Water Act.
(d) The Tribe may authorize temporary permits to be issued
pending completion of review procedures otherwise
required prior to issuance of a permit, but no
temporary permit may be issued for more than a period
of two years nor shall any temporary permits be renewed.
(e) Nothing in any permit shall ever be construed to
prevent or limit the application of any emergency power
of the Tribe.
(f) Every permit issued for a sewage treatment works shall
contain such terms and conditions as the Tribe
determines to be necessary or desirable to assure
continuing compliance of applicable control
regulations. Such terms and conditions may require
that whenever deemed necessary by the Tribe to assure
such compliance the permittee shall:
(1) Require pretreatment of effluent from industrial,
governmental, or commercial facilities processes
and activities before such effluent is received
into the gathering and collection system of the
permittee;
(2) Prohibit any connection to any municipal
permittee's intercepters and collection system
that would result in receipt by such municipal
permittee of any effluent other than sewage
required by law to be received by such permittee;
(3) Include specified terms and conditions of its
permit in all contracts for receipt by the
permittee of any effluent not required to be
received by a municipal permittee;
(4) Initiate engineering and financial planning for
expansion of the sewage treatment works whenever
through-put and treatment reaches 80% of design
capacity;
(5) Commence construction of such sewage treatment
works expansion whenever throughput and treatment
reaches 95% of design capacity or, in the case of
a municipality, either commence such construction
or cease issuance of building permits within such
municipality until such construction is commenced,
except that building permits may continue to be
issued for any construction which would not have
the affect of increasing the input of sewage to
the sewage treatment works of the municipality
involved; and
(6) Inclusion of the requirements authorized by
paragraph (4) of this subsection (f) shall be
presumed unnecessary to assure compliance upon a
showing that the area served by a governmental
sewage treatment works has a stable or declining
population; but this provision shall not be
construed as preventing periodic review by the
Tribe should it be felt that growth is occurring
or will occur in the area.
(g) Every permit issued for a discharge from any facility,
process, or activity that includes any dam, settling
pond, or hazard within or related to its system shall
include such terms and conditions as the Tribe
determines necessary to prevent or minimize the
discharge of any pollutant into any reservation waters
in potentially dangerous quantities.
(h) For the purposes of defraying costs incurred by the
Tribe in their monitoring of waste discharged into
reservation waters pursuant to a permit issued under
this section, the permittee shall pay to the Tribe a
fee of $50 prior to the commencement of each year
covered by the permit beyond the first year. Until
such fee is paid, when due, the permittee shall not be
in good standing under this Article.
Section 1024. Application - Fee-Public Participation.
(a) Each application for a waste discharge permit shall be
accompanied by a fee of one hundred dollars. For
purposes of this subsection:
(1) "Major municipal discharge" is a discharge from a
publicly owned wastewater treatment plant which:
(A) Discharges a total volume of more than five
million gallons on any one day of the year;
(B) Serves a population in excess of ten thousand
persons; or
(C) Receives waste from an industrial user and
such wastes have a total volume of more than
fifty thousand gallons on any day of the year
or have a total volume which constitutes more
than five percent of the volume of the total
discharge from the facility on any day of the
year.
(2) "Minor municipal discharge" is a discharge from a
publicly owned wastewater treatment plant which is
less than all cases in subparagraph (1) of this
paragraph.
(3) "Major industrial discharge" is one in which the
discharge from the facility:
(A) Has a total volume of more than fifty
thousand gallons on any one day of the year
from one or more discharge points; or
(B) Contains or may contain toxic pollutants.
(4) "Minor industrial discharge" is one which does not
discharge over fifty thousand gallons in the
aggregate on any one day of the year from one or
more discharge points and which does not contain
toxic pollutants.
(5) "Irrigation return flow" means tailwater, tile
drainage, or surfaced groundwater flow from
irrigated land, in a system operated by public or
private organizations or individuals, if:
(A) There is a point source of discharge (e.g., a
pipe, a ditch, or any other defined or
discrete conveyance), whether an artificial
or a natural feature of the land, purposely
maintained as a drainage structure;
(B) The return flow is from land areas of more
than three thousand contiguous irrigated
acres or three thousand noncontiguous
irrigated acres which use the same artificial
drainage system or natural feature of the
land purposely maintained as a common
drainage structure;
(C) The discharge from the lands (as opposed to
the water supply to the lands) is controlled
by one public or private organization or one
individual. Irrigation return flow is
concerned with the drainage from irrigated
land. It does not include the delivery of
irrigation water.
"Feedlots" includes:
(1) "Small feedlots," by type and capacity:
Slaughter and feeder cattle - 1,000 to 4,999
Mature dairy cattle - 700 and over
Swine weighing over 55 lbs. - 2,500 to 12,499
Sheep - 10,000 to 49,999
Turkey - 55,000 to 274,000
Chickens, with continuous overflowing watering -
100,000 to 499,999
Chickens, with liquid manure handling systems -
30,000 to 149,000
Ducks - 5,000 to 24,999
(2) "Medium feedlots," by type and capacity:
Slaughter and feeder cattle - 5,000 to 9,999
Swine weighing over 55 lbs. - 12,500 and over
Sheep - 50,000 and over
Turkeys - 275,000 and over
Chickens, with continuous overflowing watering -
50,000 and over
Chickens, with liquid manure handling systems -
150,000 and over
(3) "Large feedlots" with a capacity to handle 20,000 and over
slaughter and feeder cattle.
Annual fees for discharge of pollutants are as follows:
(A) Major municipal and industrial discharges - $250
(B) Minor municipal and industrial discharges - $50
(C) Irrigation return flow - $10
(D) Small feedlots - $10
(E) Medium feedlots - $40
(F) Large feedlots - $60
The permits shall run from the date of issuance, and the annual
fees shall be paid to the Tribe.
(b) Upon receipt of an application, the tribe shall prepare
a tentative determination to issue or deny the permit,
and if it is to be issued, its tentative determination
as to the terms and conditions of such permit.
(c) Public notice of every complete application for a
discharge permit shall be circulated in a manner
designed to inform interested and potentially
interested persons of the proposed discharge and of the
proposed determination to issue or deny a permit.
Procedures for the circulation of public notice shall
be established by the tribe and shall include at least
the following:
(1) Notice shall be circulated within the geographical
areas of the proposed discharge.
(2) Notice shall be mailed to any person or group upon
request.
(3) The tribe shall add the name of any person or
group upon request to a mailing list to receive
copies of notices for all discharge applications
within the state or within a certain geographical
area.
(4) The tribe shall promulgate such regulations as are
necessary and appropriate to provide an
opportunity for public hearing, when appropriate,
prior to granting or denial of a discharge permit
by the tribe.
Section 1025. Permits - When Required and When Prohibited.
(a) The tribe shall issue a waste discharge permit in
accordance with regulations promulgated under this
article.
(b) No discharge shall be permitted which will violate any
duly promulgated reservation-wide or local land use
plan unless all requirements and conditions of
applicable ordinances and regulations have been met or
will be met pursuant to a schedule of compliance.
(c) No discharge shall be permitted which will violate a
control regulation unless the waste discharge permit
contains effluent limitations and a schedule of
compliance specifying treatment requirements as
determined by the division. Such requirements shall
require the best practical or available treatment
consistent with the federal Clean Water Act.
(d) No discharge shall be permitted that by itself or in
combination with other pollution will result in
pollution of the receiving waters in excess of the
pollution permitted by an applicable water quality
standard unless the permit contains effluent
limitations and a schedule of compliance specifying
treatment requirements.
(e) In any case in which a permit for a discharge has been
applied for but final disposition of such application
has not been made, such discharge shall not be a
violation of any provisions of this article or
regulations promulgated under this article unless the
tribe proves that absence of final administrative
disposition of such application has resulted from the
failure of the applicant to furnish information
reasonably required or requested in order to process
the application.
Section 1026. Nuclear, Toxic, and Radioactive Wastes.
(a) It is unlawful for any person to discharge, deposit,
generate, or dispose of any radioactive, toxic, or
other hazardous waster underground in liquid, solid, or
explosive form unless the tribe, upon application of
the person desiring to undertake such activity, and
after investigation and hearing, has first found beyond
a reasonable doubt that there will be no pollution
resulting therefrom or that the pollution, if any, will
be limited to waters in a specified limited area from
which there is no risk of significant migration and
that the proposed activity is justified by public need.
(b) In such case the tribe may issue a permit for the
proposed activity, upon the payment of a fee on one
thousand dollars. The tribe may include in such permit
such reasonable terms and conditions as it may from
time to time require to implement this section in a
manner consistent with the purposes of this article.
The terms or conditions which may be imposed shall
include, without limitation, those with respect to
duration of use or operation; monitoring; reporting;
volume of discharge or disposal; treatment of wastes;
and the deposit with the tribal treasurer of a bond,
with or without surety as the tribe may in its
discretion require, or other security, to assure that
the permitted activities will be conducted in
compliance with the terms and conditions of the permit,
and that upon abandonment, cessation, or interruption
of the permitted activities or facilities, appropriate
measures will be taken to protect the waters of the
tribe. Other than relief from provisions of this
article to the extent specified in this subsection (2),
no permit issued pursuant to this subsection (2) shall
relieve any person of any duty or liability to the
state or to any other person existing or arising under
any statute or under common law.
[Option for non-point sources:
Section 1027. Agricultural Wastes.
(a) The tribe shall not require any permit for any flow or
return flow of irrigation water into reservation waters.
(b) The tribe shall not require any permit for animal waste
on farms and ranches.
VIOLATIONS, REMEDIES, AND PENALTIES
Section 1028. Tribe to be Notified of Suspected Violations and
Accidental Discharges - Penalty.
(a) Any person or any agency of the Tribe may apply to the
tribe to investigate and take action upon any suspected
or alleged violation of any provision of this article
or of any order, permit, or regulation issued or
promulgated under the authority of this article.
(b) Any person engaged in any operation or activity which
results in a spill or discharge of oil or other
substance which may cause pollution of the waters of
the reservation contrary to the provisions of this
article shall, as soon as he has knowledge thereof,
notify the division of natural resources, Any person
who fails to notify the tribe as soon as practicable is
deemed in violation of this article and, upon an
administrative finding thereof, shall be levied an
administrative civil penalty of not more than ten
thousand dollars ($10,000), or by imprisonment in the
tribal jail upon conviction for a misdemeanor for a
violation of this article for not more than six (6)
months, or by both such administrative penalty and
criminal penalty.
Section 1029. Notice of Alleged Violations.
(a) Wherever the tribe has reason to believe that there has
occurred a violation of an order, permit, or control
regulation issued or promulgated under authority of
this article, the tribe shall cause written notice to
be served personally or by certified mail
return-receipt requested upon the alleged violator or
its agent for service of process. The notice shall
state the provision alleged to be violated, the facts
alleged to constitute a violation, and any may include
the nature of any corrective action proposed to be
required.
(b) Each cease and desist and clean-up order issued
pursuant to sections 1032 and 1033 shall be accompanied
by or have incorporated in it the notice provided for
in subsection (a) of this section unless such notice
shall thereto have been given.
Section 1030. Hearing Procedures for Alleged Violations.
(a) In any notice given under section 1029 the tribe may
require the alleged violator to appear before it for a
public hearing and to answer each alleged violation.
Such hearing shall be held no sooner than fifteen (15)
days after service of the notice, except the tribe may
set an earlier date for hearing if it is requested by
the alleged violator if an emergency exists.
(b) If the tribe does not require an alleged violator to
appear for a public hearing, the alleged violator may
request the tribe to conduct such a hearing. Such
request shall be in writing and shall be filed with the
secretary of the tribe no later than thirty (30) days
after service of the notice under section 1029. If
such a request is filed, a hearing shall be held within
a reasonable time.
(c) If a hearing is held pursuant to the provisions of this
section, it shall be public and shall, if the tribe
deems it practicable, be held in the district in which
the violation is alleged to have occurred. The tribe
shall permit all parties to respond to the notice
served under section 1029 to present evidence and
argument on all issues, to call witnesses, and to
conduct cross-examination required for a full
disclosure of the facts.
Section 1031. Suspension, Modification, and Revocation of Permit.
Upon a finding and determination, after hearing, that a
violation of a permit provision has occurred, the tribe shall suspend,
modify, or revoke the pertinent permit, or take such other action with
respect to the violation as may be authorized pursuant to regulations
promulgated by the tribe.
Section 1032. Cease and Desist Orders.
If the tribe determines, with or without a hearing, that
there exists a violation of any provision of this article or of any
order, permit, or control regulation issued or promulgated under
authority of this article, the tribe (or its appropriate agency) may
issue a cease and desist order. Such order shall set forth the
provision alleged to be violated, the facts alleged to constitute the
violation, and the time by which acts or practices complained of must
be terminated.
Section 1033. Clean-up Orders.
The tribe (or its appropriate agency) may issue orders to
any person to clean up any material which he, or his employee, or his
agent has accidentally or purposely dumped, spilled, or otherwise
deposited in or near reservation waters which may pollute them. The
tribe may also have the tribal attorney proceed and take appropriate
action.
Section 1034. Restraining Orders and Injunctions.
(a) In the event any person fails to comply with a cease
and desist order or clean-up order that is not subject
to stay pending administrative or judicial review, the
tribe may request the tribal prosecutor to bring, and
if so requested it shall be his duty to bring, a suit
for a temporary restraining order, preliminary
injunction, or permanent injunction to prevent any
further or continued violation of such order. In any
such suit the final findings of the tribe based upon
evidence in the record, shall be prima facie evidence
of the facts found therein.
(b) Suits under this section shall be brought, where
practicable, in the tribal court of the district where
the discharge occurs. Emergencies shall be given
precedence over all other matters pending in such
court. The institution of such injunction proceeding
by the tribe shall confer upon such court exclusive
jurisdiction to determine finally the subject matter of
the proceeding.
Section 1035. Civil Penalties.
(a) Any person who violates any provision of any permit
issued under this article or any final cease and desist
order or clean-up order shall be subject to a civil
penalty of not more than ten thousand dollars ($10,000)
per day for each day during which such violation occurs.
(b) Upon application of any of the Division, penalties
shall be determined after a hearing as to the amount
thereof and may be collected by the tribe by action
instituted in tribal court by the tribal attorney for
collection of such penalty. A stay of any order of the
tribe pending judicial review shall not relieve any
person from any liability under subsection (a) of this
section, but the reason for the request for judicial
review shall be considered in the determination of the
amount of the penalty.
Section 1034. Criminal Pollution of Reservation Waters - Penalties.
(a) Any person who discharges any pollutant into any
reservation waters commits criminal pollution or
reservation waters if such discharge is made:
(1) In violation of any permit issued under this
article; or
(2) In violation of any cease and desist order or
clean-up order issued by the tribe (or its
appropriate agency) which is final and not stayed
by court orders; or
(3) Without a permit, if a permit is required by the
provisions of this article for such discharge,
unless there is then pending an application for
such a permit; or
(4) In violation of any applicable control regulation,
unless a permit has been issued therefore or
unless there is then pending an application for
such a permit.
(b) Prosecution under paragraphs (1) through (4) of
subsection (a) of this section shall be commenced only
upon complaint filed by the tribe.
(c) Any person who commits criminal pollution of
reservation waters shall be fined, for each day the
violation occurs, as follows:
(1) If the violation is committed with criminal
negligence or recklessly, the maximum fine shall
be one hundred fifty dollars ($150).
(2) If the violation is committed knowingly or
intentionally, the maximum fine shall be two
hundred dollars ($200).
(3) If two separate offenses under this Article occur
in two separate episodes during a period of two
years, the maximum fine for the second offense
shall be double the amounts specified in
paragraphs (1) and (2) of this subsection (c).
Section 1037. Falsification and Tampering.
Any person who knowingly makes any false statement,
representation, or certification in any application, record, report,
plan, or other document filed or required to be maintained under this
article, or who falsifies, tampers with, or knowingly renders
inaccurate any monitoring device or method required to be maintained
under this article is guilty of a misdemeanor and upon conviction
thereof, shall be punished by a fine of not more than three hundred
dollars ($300), or by imprisonment in the tribal jail for not more
than six (6) months, or by both fine and imprisonment.
Section 1038. Proceedings by Other Parties.
(a) The factual or legal basis for proceedings or other
actions that shall result from a violation of any
control regulation inure solely to the benefit of the
people of the tribe(s), and is not intended by this
article, in any way, to create new private rights or to
enlarge existing private rights. A determination that
water pollution exists or that any standard has been
disregarded or violated, whether or not a proceeding or
action may be brought by the Tribe, shall not create by
reason thereof any presumption of law or finding of
fact which shall inure to or be for the benefit of any
person other than the tribe(s).
(b) A permit issued pursuant to this article may be
introduced in any court of law as evidence that the
permittee's activity is not a public or private
nuisance. Introduction into evidence of such permit
and evidence of compliance with the permit conditions
shall constitute a prima facie case that the activity
to which the permit pertains is not a public or private
nuisance.
GENERAL PROVISIONS
Section 1039. Streambed Alteration.
(a) Alteration work shall not be permitted within the high
water mark of any stream without receiving a permit
from the Tribal Council.
Any person proposing the project shall submit a work plan
to the Tribal Council for their review. As a part of
the review process, the Tribal Council may consult
the U.S. Fish and Wildlife Service and the Bureau of
Indian Affairs for recommendations. On this basis,
the Council will either issue a permit, deny a permit,
or request further review.
(b) There shall be no heavy equipment allowed within the
confines of any stream. In-stream work shall be
completed with equipment situated out of the stream
channel.
Section 1040. Minimum In-Stream Flow.
(a) Under this article, minimum in-stream flow for cultural
and traditional uses, fish and aquatic life, recreation
and esthetic purposes are legitimate beneficial uses.
(b) Parties proposing to de-water major reservation streams
for irrigation purposes or agricultural use must
demonstrate to the tribe that the proposed activities
will not interfere with a minimum stream-flow no less
than ten (10) cubic feet per second (cfs) for the
purposes of subsection (a).
(c) A minimum stream flow of 10 cfs shall be retained in
all other streams at all times, unless the natural
flow, due to natural conditions, is less than 10 cfs.
Section 1041. Lakeshore Management.
(a) A permit is required by any person who proposes to do
any work which will alter or diminish the course,
current, or cross sectional area of a lake or its
lakeshore. Without limitation, the following
activities are, when conducted below mean annual high
water elevation, examples of work for which a permit is
required. Construction of channels and ditches;
dredging of lake bottom areas to remove muck, silt, or
weeds; lagooning; filling; constructing breakwaters or
pilings, wharves, and docks.
(b) Any person proposing work within a lakeshore area shall
submit a work plan to the Tribal Council for their
review. The Tribal Council will make the final
decision on whether or not and how any work is
accomplished, with the aid of the U.S. Fish and
Wildlife Service and the Bureau of Indian Affairs where
appropriate.
Factors to be considered during the review process are
that the work will not, during either its construction
or utilization:
(1) materially diminish water quality;
(2) materially diminish habitat for fish or wildlife;
(3) interfere with navigation or other lawful
recreation;
(4) create a public nuisance;
(5) create a visual impact discordant with natural
scenic values, as determined by the Tribal
Council, where such values form the predominant
landscape elements; or
(6) Materially impair cultural or traditional uses of
lakes and lakeshore areas.
(c) A person who performs work in a lake without a permit
for that work shall, if required by the Tribal Council,
restore the lake to its condition before it was
disturbed, and is subject to the provisions for
violations, remedies, and penalties under this Article
as contained in Section 4000 et seq.
Section 1042. Obstructions to Fish Passage.
(a) No object may be built in or across a stream that will
block or inhibit the free passage of fish past that
point.
(b) Any person proposing such work must submit a written
project proposal to be reviewed by the Tribal Council
in conjunction with the U.S. Fish and Wildlife Service,
Bureau of Indian Affairs, or other appropriate parties
at a public meeting. If approval is received, and a
permit granted, permit conditions must be adhered to
which will facilitate the passage of fish.
Section 1043. Forestry.
(a) Effective December 31, 1980, forest logging shall be
prohibited within an area within ten (10) chains (660
feet) of the bank of any reservation stream determined
by the Tribe to have the potential to support a
population of salmonid fishes or which serves as a
spawning ground for the same.
(b) Logging roads shall be prohibited within the area
described in subsection (a) except for permitted
activities under subsection (c).
(c) Any person proposing access roads or trails or stream
crossings along or over streams determined by the Tribe
to have the potential to support a population of
salmonid fishes or which serves as a spawning ground
for the same shall submit a written project proposal to
the Tribal Council for a permit to conduct such
activities. The Tribal Council shall make the final
decision as to whether such activities will be
permitted and what conditions shall be required in
order to preserve the species or species habitat.
(d) Any person who seeks to harvest timber must submit a
written project proposal to the Tribal Council for a
permit to conduct such activities. The Tribal Council
shall make the final decision whether such activities
will be permitted and under what conditions such
activity will be permitted in order to:
(1) preserve the resulting water quality in order to
meet the standards of that particular watershed,
as established by the tribe pursuant to its stream
classification system under this Article; and
(2) Avoid general deterioration of water quality
through erosion from the practice of clear cutting
of timber.
Section 1044. Oil & Gas Recovery Activities, Surface Mining.
(a) Effective December 31, 198__, oil and gas exploration
and recovery activities including underground injection
and surface mining activities shall be prohibited
within an area 1,000 feet from the banks of any
reservation stream or lake determined by the tribe to
have the potential to support a population of salmonid
fishes of which serves as a spawning ground for the
same.
(b) Any person seeking to engage in such activities covered
under subsection (a) within one-half mile of a tribally
designated stream under that subsection must submit a
written project proposal to the Tribal Council for a
permit to conduct such activities. The Tribal Council
shall make the final decision as to whether such
activities will be permitted and what conditions shall
be required to preserve the species or species habitat.
(c) Effective December 31, 198__, oil and gas exploration
and recovery activities, including underground
injection, and surface mining activities, which will
affect reservation streams and lakes will require a
tribal permit.
(d) Any person seeking to engage in such activities covered
under subsection (c) of this section must submit a
written project proposal to the Tribal Council for a
permit to conduct such activities. The Tribal Council
shall make the final decision as to whether such
activities will be permitted and what conditions will
be required to:
(1) Assure that the resulting water quality will meet
the standards of that particular watershed as
established by the Tribe pursuant to its stream
classification system under this Article; and
(2) Assure that all resulting effluent discharges from
such operations shall be retained or treated in a
proper manner so as to protect the watershed from
degradation from the tribally established standard
for that stream or watershed.
Section 1046. Severability.
(a) If any provision of this article or the application
thereof to any person or circumstance is held invalid,
the invalidity shall not affect other provisions or
applications of this article which can be given effect
without regard to the invalid provision or
applications, and to this end the provisions of this
Act are severable.
WASTE MANAGEMENT ORDINANCE
RESOURCE CONSERVATION AND RECOVERY ORDINANCE
Section 3001. Definitions. As used in this part, unless the
context otherwise requires:
(a) "Approved site or facility" means a site or facility
for which a certificate of designation has been
obtained.
(b) "Board" means the tribal Health Board.
(c) "Person" means an individual, partnership, private or
municipal corporation, firm, or other association of
persons, or the Tribe or its agencies.
(d) "Recyclable materials" means a type of material that is
subject to reuse or recycling.
(e) "Recycling operation" means that part of a solid wastes
disposal facility or a part of a general disposal
facility at which recyclable materials may be separated
from other materials for further processing.
(f) "Solid wastes" means garbage, refuse, sludge of sewage
disposal plants, and other discarded solid materials,
including solid waste materials resulting from
industrial, commercial, and community activities but
does not include agricultural wastes.
(g) "Solid wastes disposal" means the collection, storage,
treatment, utilization, processing, or final disposal
of solid wastes.
(h) "Solid wastes disposal site and facility" means the
location and facility at which the deposit and final
treatment of solid wastes occur.
(i) "Transfer station" means a facility at which refuse,
awaiting transportation to a disposal site, is
transferred from one type of collection vehicle and
placed into another.
Section 3002. Facility Siting and Operation.
(a) It is declared to be unlawful for any person to operate
a solid waste disposal site and facility within the
exterior boundaries of the ____________reservation
without first having obtained a certificate of
designation for such activities from the tribal
business council of the _______________ Tribe(s).
(b) Any site and facility for the disposal of mill
tailings, metallurgical slag, mining wastes, junk
automobiles, or parts thereof, or suspended solids
collected, treated, or disposed of within a sanitary
sewer system in operation immediately prior to January
1, 1980, shall have until January 1, 1982, to comply
with the provisions of this Article and the rules and
regulations adopted by the Tribe or its Health Board.
(c) The final use for beneficial purposes, including
fertilizer, soil conditioner, fuel, and livestock feed,
of sewage sludge which has been processed and certified
a designated as meeting all the requirements of the
Health Board shall not require a certificate of
designation for such final use.
Section 3003. Application for Certificate. Any person desiring to
operate a solid wastes disposal site and facility
within the ___________reservation shall make an
application to the tribal council through the tribal
Health Board. Such application shall be accompanied by
a non-refundable fee of fifty dollars ($50), and it
shall set forth the location of the site and facility,
the type of processing to be used, such as sanitary
landfill, composting, or incineration; the hours of
operation; the method of supervision; the rates to be
charged, if any; the type of soil composition and
location of groundwater; the type of monitoring to be
conducted; and such other information as may be
required by the tribal council. The application shall
also contain such engineering, geological, hydrological
data, and operational data as may be required by the
Board by regulation. The application shall be referred
to the tribal Health Board for review and
recommendation as to approval or disapproval which
shall be based upon criteria established by the tribal
Health Board, in conjunction with the Tribal Council
and the Air Quality Commission.
Section 3004. Factors to be Considered.
(a) In considering an application for a certificate of
designation, the Tribal Council shall take into account:
(1) The effect of solid wastes disposal and facility
siting on the surrounding property, taking into
consideration the types of processing to be used,
surrounding property uses and values, affected
waters of the reservation and stream
classification, wind and climatic conditions;
(2) The convenience and accessibility of the disposal
site and facility to potential users;
(3) The ability of the applicant to comply with the
health standards and operating procedures as may
be prescribed by the Health Board through its
rule-making powers; and
(4) Recommendations of the U.S. Indian Health Service
and the U.S. Environmental Protection Agency.
Section 3005. Certificate. If the Tribal Council deems that a
certificate of designation should be granted to the
applicant, it shall, after a public meeting to consider
the application and the recommendations of the Health
Board, issue a certificate valid for two years, and
such certificate shall be displayed in a prominent
place of the site and facility.
Section 3006. Private Disposal Prohibited. No private dumping of
solid waste shall be made on any property within the
reservation except in or at an approved site during
official business hours; but private dumping of one's
own solid wastes on one's own property shall not be
subject to the provisions of this Article so long as it
does not constitute a public nuisance endangering the
health, safety, and welfare of others nor pollutes the
air or water of this reservation and as long as such
dumping is in accordance with the rules and regulations
of the Health Board.
Section 3007. Board to Promulgate Rules and Regulations.
(a) The tribal Health Board is hereby delegated rule-making
powers to promulgate and is hereby legally directed to
promulgate rules and regulations for the engineering
design and operation of solid wastes, disposal sites
and facilities, which may include but are not limited
to:
(1) The establishment of engineering design criteria
applicable, but not limited to, protection of
surface and groundwaters, suitable soil
characteristics, distances from solid wastes
generation centers, access routes, distance from
water wells, disposal facility on-site traffic
control patterns, insect and rodent and livestock
control, methods of solid wastes compaction in the
disposal fill, confinement of windblown debris,
disposal of animal carcasses, disposal or recovery
of automobiles or household appliances, recycling
operations, fire prevention, and final closure of
the compacted fill; and
(2) The establishment of criteria for solid wastes
disposal sites and facilities which will place
into operation the engineering design for such
disposal sites and facilities.
Section 3008. Minimum Standards.
(a) The rules and regulations promulgated by the tribal
Health Board shall contain the following minimum
standards;
(1) Such sites shall be located, operated, and
maintained in a manner so as to control obnoxious
odors and prevent rodent and insect breeding and
infestation, and they shall be adequately covered
during their use.
(2) Such sites and facilities shall comply with the
health laws, standards, rules and regulations of
the board, the tribal water quality code, rules
and regulations of the Air Quality Commission, and
all applicable zoning laws and ordinances.
(3) No radioactive materials or materials contaminated
by radioactive substances including tailings shall
be disposed of in sites on or facilities not
specifically designated for that purpose.
(4) A site or facility operated as a sanitary landfill
shall provide means of finally disposing of solid
wastes on land in a manner to minimize nuisance
conditions such as smoke, odors, windblown debris,
insects, rodents; and shall provide compacted fill
material; shall provide adequate cover with
suitable material and surface drainage designed to
prevent ponding and water and wind erosion and
prevent water and air pollution; and, upon being
filled, shall be left in a condition of
orderliness and good esthetic appearance and
capable of being blended with one surrounding
area. In the operation of such a site and
facility, the solid wastes shall be distributed in
the smallest area consistent with handling traffic
to be unloaded; shall be placed in the most dense
volume practicable using moisture and compaction
or other method approved by the Department; shall
be insect, rodent, and livestock resistant through
the application of an adequate layer of inert
material at regular intervals; and shall have a
minimum of windblown debris which shall be
collected at regular intervals and be placed into
the fill.
(5) Sites and facilities shall be adequately fenced so
as to prevent waste material and debris from
escaping therefrom, and material and debris shall
not be allowed to accumulate along the fence line.
(6) Solid wastes disposed at any site or facility or
on private property shall not be burned except
that, in extreme emergencies resulting in the
generation of large quantities of combustible
materials, authorization for burning under
controlled conditions may be given by the Board.
Section 3009. Revocation of Certificate. The Tribal Council, after
reasonable notice and opportunity for a public hearing,
shall temporarily suspend or revoke a certificate of
designation that has been granted by it for failure of
a site and facility to comply with all applicable laws,
resolutions, and ordinances or to comply with this
Article or any rule or regulation adopted pursuant
thereto.
Section 3010. Public Nuisances. Any solid waste disposal site and
facility found to be abandoned or that is operated or
maintained in a manner so as to violate any of the
provisions of this Article or any rule or regulation
adopted pursuant thereto shall be deemed a public
nuisance, and such violation may be enjoined by the
tribal court in an action brought by the Tribe. This
section applies as well as to tribally-operated and
maintained disposal sites and facilities and the
Tribe's immunity from suit in tribal court is hereby
waived for actions brought by any person under this
Article.
Section 3011. Violation - Penalty. Any person who violates any
provision of this Article is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a
fine of one hundred dollars ($100), or by imprisonment
in the tribal jail for not more than thirty (30) days,
or by both such fine and imprisonment. Each day of
violation shall be deemed a separate offense under this
section.
Section 3012. Severability.
If any provision of this article or the application thereof
to any person or circumstance is held invalid, the invalidity shall
not affect other provisions or applications of this Act which can be
given effect without regard to the invalid provision or application;
and to this end the provisions of this article are severable.
UNDERGROUND INJECTION CONTROL ORDINANCE
UNDERGROUND INJECTION CONTROL
Section 6000. Legislative Declaration. It is hereby declared that
the waters of the ________________reservation used for
water supply for domestic, agricultural, and municipal
purposes constitute an invaluable resource of the
____________Indian reservation and is a matter of
public interest and concern. In the exercise of its
police powers, the _____________Tribe(s), through its
legislative body hereby enacts this "Underground
Injection Control Ordinance" to preserve, maintain, and
improve its underground water supply systems to protect
the general health, safety, and welfare of the members
of the _____________ Tribe(s) and for the health and
safety of all persons within the _______________
reservation.
Section 6001. Classification of Injection Wells. Injection wells
within the _____________reservation are classified as
follows:
(a) Class I.
(1) Wells used by generators of hazardous wastes or
owners or operators of hazardous waste management
facilities to inject hazardous waste, other than
class IV wells.
(2) Other industrial and municipal disposal wells
which inject fluids beneath the lowermost
formation containing, within one quarter mile of
the well bore, an underground source of drinking
water.
(b) Class II Wells. Wells which inject fluids:
(1) Which are brought to the surface in connection
with conventional oil or natural gas production;
(2) For enhanced recovery of oil or natural gas
productions; and
(3) For storage of hydrocarbons which are liquid at
standard temperature and pressure.
(c) Class III wells. Wells which inject for extraction of
minerals or energy including:
(1) Mining of sulphur by the Frasch Process;
(2) Solution mining of minerals;
(3) In Situ combustion of fossil fuel, and
(4) Recovery of geothermal energy.
(d) Class IV wells. Wells which are used by generators of
hazardous water or radioactive wastes, by owners or
operators of hazardous watter management facilities, or
by owners or operators of radioactive wastes into or
above a formation which within one quarter mile of the
well contains an underground source of drinking water.
(e) Class V wells. Injection wells not included in Classes
I, II, III, or IV.
Section 6002. Unauthorized Injection Prohibited.
(a) Effective July 1, 1981, no person shall construct any
injection well without first obtaining a permit from
the ______________ Tribe(s).
(b) Effective December 31, 1981, no person may continue to
operate an underground injection well in existence on
the date of passage of this Ordinance except as
authorized by a permit from the Tribe(s).
(c) Tribal permits issued under subsections (a) and (b) of
this section are subject to the limitations specified
in section 6003.
Section 6003. Prohibition of Movement of Fluid.
(a) No authorization by permit shall be allowed in the
following circumstances:
(1) Where a Class I, II, or III well causes or allows
movement of fluid into underground sources of
drinking water.
(2) Where a Class IV or V well causes or allows
movement of fluid containing any contaminant into
underground sources of drinking water and the
presence of that contaminant may adversely affect
the health of persons.
(b) For Class I, II, and III wells, if any monitoring
indicates the movement of any injection or formation
fluids into underground sources of drinking water, the
Tribe(s) shall prescribe such additional requirements
for construction, corrective action, operation,
monitoring, and reporting (including closure of the
injection well) as are necessary to prevent such
movement. These additional requirements shall be
imposed by modifying the permit, or the permit may be
terminated, or other appropriate enforcement action may
be taken if the permit has been violated.
(c) For Class V wells, if the Tribe(s) learns that a Class
V well may exceed the primary standards set for
drinking water as set forth in the 40 CFR Part 142, the
Tribe(s) shall:
(1) Require the injector to obtain an individual
permit;
(2) Order the injector to take such corrosive actions
(including when required the closure of the
injection well) as may be necessary to prevent the
violation; or
(3) Take enforcement action.
(d) Whenever the Tribe(s) learns that a Class V well may be
otherwise adversely affecting the health of persons,
the Tribe(s) may prescribe such actions as may be
necessary to prevent the adverse affect, including any
action authorized under subsection (c) of this section.
(e) Notwithstanding any other provision of this section,
the Tribe(s) may take emergency action upon receipt of
information that a contaminant which is present in or
is likely to enter a public water system may present an
imminent and substantial endangerment to the health of
persons.
Section 6004. Identification of Underground Sources - Exemptions.
(a) After notice and opportunity for a public meeting, the
Tribe(s) may identify (by narrative descriptions,
illustrations, maps, or other means) and protect,
except where exempted under subsection (b) of this
section, as an underground source of drinking water,
all aquifers or parts of aquifers which meet the
definition of an "underground source of drinking water"
in section ______. Even if an aquifer has not been
specifically identified by the Tribe(s), it is an
underground source of drinking water if it meets the
definition in section _____.
(b) After notice and opportunity for a public hearing the
Tribe(s) may identify (by narrative description,
illustrations, maps, or other means) and describe in
geographic and/or geometric terms (such as vertical and
lateral limits and gradient) which are clear and
definite, all aquifers or parts thereof which the
Tribe(s) proposes to designate as exempted aquifers.
Section 6005. Elimination of Certain Class IV Wells.
(a) Effective January 1, 1981, there shall be prohibited
construction of any Class IV well for the injection of
hazardous waste directly into an underground source of
drinking water.
(b) The injection of hazardous waste directly into an
underground source of drinking water through a Class IV
well that was not in operation prior to January 1, 1981
(or "the effective date of this Ordinance") shall be
prohibited.
(c) Any increase in the amount of hazardous waste or change
in the type of hazardous waste injected into a well
injecting hazardous waste directly into an underground
source of drinking water shall be prohibited effective
January 1, 1981.
(d) The operation of any Class IV well injecting hazardous
waste directly into an underground source of drinking
water shall be prohibited after six months from the
date of the adoption of this Ordinance.
Section 6006. Application for a Permit.
(a) Any person who performs or proposes an underground
injection for which a permit is or will be required
shall submit an application to the Tribe(s) as follows:
(1) For existing injection wells, as expeditiously as
practicable and no later than one (1) year from
the adoption of this Ordinance.
(2) For new injection wells, a reasonable time before
construction is expected to begin.
Section 6007. Area Permits.
(1) The Tribe(s) may issue permits on an area basis, rather
than for each well individually, provided that the
permit is for injection wells:
(1) Described and identified by location in permit
application(s), if they are existing wells;
(2) Within the same well field, facility, site,
reservoir, project, or similar unit in the
reservation;
(3) Of similar construction;
(4) Of the same classification under section 6001; and
(5) Operated by a single owner or operator.
(b) Area permits shall specify:
(1) The area within which underground injections are
authorized, and
(2) The requirements for construction, monitoring,
reporting, operation, and abandonment, for all
wells authorized by the permit.
(c) The permit may authorize the permittee to construct and
operate new injection wells within the permit area
provided:
(1) The permittee notifies the Tribe(s) no later than
the date on which the monitoring reports are
required to be submitted under section ____,
pursuant to a procedure specified in the permit,
when and where the new well has been or will be
drilled;
(2) The additional well satisfies the criteria in
subsection (a) of this section and meets the
requirements specified in the permit under
subsection (b) of this section; and
(3) The cumulative effects of drilling and operation
of additional injection wells are considered by
the Tribe(s) during evaluation of the area permit
application and are acceptable to the Tribe(s).
(d) If the Tribe(s) determines that any well constructed
pursuant to subsection (c) of this section does not
satisfy any of the requirements in subsection (c)(1) or
(2) of this section, the Tribe(s) may modify the
permit, terminate the permit, or take enforcement
action. If the Tribe(s) determines that cumulative
effects are unacceptable, the permit may be modified.
GENERAL PERMIT REQUIREMENTS FOR PROGRAMS
UNDER THE "RESOURCE CONSERVATION AND
RECOVERY ORDINANCE" AND THE "UNDERGROUND
INJECTION CONTROL" ORDINANCE.
Section 6050. Application for a Permit.
(a) Any person who is required to have a permit (including
new applicants and permittees with expiring permits)
shall complete, sign, and submit an application to the
Tribe(s) as described in this section and in section
3002, Resource Conservation and Recovery Ordinance,
sections 6006 and 6007, Underground Injection Control
Ordinance.
(b) Any person who owns or operates any facility, activity,
or process which requires a permit must sign the permit
application. When a facility or activity is owned by
one person but is operated by another person, it is the
operator's duty to obtain a permit but the owner must
also certify and sign the permit application.
(c) The Tribe(s) shall not issue a permit under a program
before receiving a complete application for a program.
An application for a permit under a program is complete
when the Tribe(s) receives an application and any
supplemental information which are completed to the
Tribes' satisfaction. The completeness of any
application for a permit shall be judged independently
of the status of any other permit application or permit
for the same facility or activity.
(d) All applicants for solid waste or UIC permits shall
provide the following information to the Tribe(s):
(1) The activities conducted by the applicant which
require it to obtain permits under the Resource
Conservation and Recovery Ordinance and the
Underground Injection Control Program.
(2) Name, mailing address, location, principal
officers, and authorized agent for service of
process of the facility for which the application
is submitted.
(3) The operator's name, address, telephone number,
ownership status, and status as federal, state,
private, public or other entity.
(4) The legal status of the land upon which the
facility is to be located.
(5) A listing of all permits or construction approvals
received or applied for under any of the following
programs:
(A) Hazardous Waste Management under the federal
Resource Conservation and Recovery Act.
(B) Underground Injection Control under the Safe
Drinking Water Act.
(C) NPDES Program under the federal Clean Water
Act.
(D) Prevention of Significant Deterioration (PSD)
Program under the federal Clean Air Act.
(E) Non-attainment Program under the Clean Air
Act.
(F) National Emission Standards for Hazardous
Pollutants (NESHAPS) pre-construction
approval under the Clean Air Act.
(G) Dredged and fill permits under section 404 of
the Clean Air Act.
(H) Other relevant environmental permits,
including Department of Interior permits and
leases.
(6) A topographical map (or other map if a topographic
map is unavailable) extending one mile beyond the
property boundaries of the source, depicting the
facility and each of its intake and discharge
structures; each of its hazardous waste,
treatment, storage, or disposal facilities; each
well where fluids from the facility are injected
underground; and those wells, springs, other
surface water bodies, and drinking water wells
listed in public records or known to the applicant
in the map area.
(7) A brief description of the nature of the business.
(8) Applicants shall keep records of all dates used to
complete permit applications and any supplemental
information for a period of at least three (3)
years from the date the application is signed.
Section 6051. Signatories to Permit Applications and Reports.
(a) All permit applications shall be signed as follows:
(1) For a corporation - by a principal executive officer;
(2) For a partnership or sole proprietorship - by a general
partner;
(3) For a municipality, state, federal, or other public
agency - by either a principal executive officer or
ranking elected officer.
(b) Reports. All reports required by permits and other
information requested by the Tribe(s) shall be signed by a
duly authorized representative. A person is a duly
authorized representative only if:
(1) The authorization is made in writing by a person
described in subsection (a) of this section.
(2) The authorization specifies either an individual or a
position having responsibility for the overall
operation of the regulated facility, process, or
activity, such as the position of plant manager,
operator of a well or a well field, superintendent, or
a position of equivalent responsibility. A duly
authorized representative may thus be either a named
individual or any individual occupying a named
position; and
(3) The written authorization is submitted to the Tribe(s).
(c) Any person signing a document under subsections (a) or (b)
of this section shall make the following certification which
shall be affixed in writing to the initial document under
subsections (a) or (b):
"I, (name) certify under penalty of law that I have
personally examined and am familiar with the information
submitted in this document and all attachments and that,
based on my inquiry of those individuals immediately
responsible for obtaining the information, I believe that
the information is true and accurate and complete. I am
aware that there may be significant penalties for submitting
false information, including the possibility of fine and
imprisonment, and I hereby consent to the personal
jurisdiction of the tribal court to resolve these and other
related legal issues, should they arise."
Section 6052. Conditions Applicable to All Permits.
The following apply to all Resource Conservation and UIC
permits, water discharge permits and dredge and fill permits:
(a) Duty to Comply. The permittee must comply with all
conditions of the specific permit. Permit
non-compliance constitutes a violation of the
appropriate ordinance and is grounds for an enforcement
action; for permit termination, revocation, reissuance,
or modification; or for denial of a permit renewal
application.
(b) Duty to Re-apply. If the permittee wishes to continue
an activity regulated by this permit after the
expiration date of this permit, the permittee must
apply for and obtain a new permit.
(c) Duty to Halt or Reduce Activity. It shall not be a
defense for a permittee in an enforcement action that
it would have been necessary to halt or reduce the
permitted activity in order to maintain compliance with
the conditions of this permit.
(d) Duty to Mitigate. The permittee shall take all
reasonable steps to minimize or correct any adverse
impact on the environment resulting from non-compliance
with this permit.
(e) Permit Operation and Maintenance. The permittee shall
at all times properly operate and maintain all
facilities and systems of treatment and control which
are installed or used by the permittee to achieve
compliance with the conditions of this permit.
(f) Permit Actions. This permit may be modified, revoked
and re-issued, or terminated for cause. Permit
conditions are not stayed by any request by the
permittee.
(g) Property Rights. This permit does not convey any
property rights of any sort, or any exclusive privilege.
(h) Duty to Provide Information. The permittee shall
furnish to the Tribe(s), within a reasonable time, any
information which the Tribe(s) may request to determine
whether cause exists for modifying, revoking,
reissuing, or terminating this permit, or to determine
compliance with this permit. The permittee shall
furnish to the Tribe(s), upon request, copies of
records required by this Article to be kept by the
permittee.
(i) Inspection and Entry. The permittee shall allow the
Tribe(s), through its authorized agent(s), upon the
presentation of credentials and other documents as may
be required by law to:
(1) Enter upon the permittee's premises where a
regulated facility, activity, or process is
located, or where records must be kept under the
conditions of this permit;
(2) Have access to and copy, at reasonable times, any
records that must be kept under the conditions of
this permit;
(3) Inspect at reasonable times any facilities,
equipment (including monitoring and control
equipment) practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable times, for the
purposes of assuring permit compliance or as
otherwise authorized by the appropriate tribal
Ordinance, any substances or parameters at any
location.
(j) Monitoring and Records.
(1) Sampling and measurements taken for the purpose of
monitoring shall be representative of the
monitored activity.
(2) The permittee shall retain records of all
monitoring information, including calibration and
maintenance records and all original strip chart
recordings for continuous monitoring
instrumentation, copies of all reports required by
this permit, for a period of at least three (3)
years from the date of the sample, measurement,
report or application. This period may be
extended by request of the Tribe(s) at any time.
(3) Records for monitoring shall include:
(A) The date, exact place, and time of sampling or
measurements;
(B) The individual(s) who performed the sampling
or monitoring;
(C) The date analyses were performed;
(D) The analytical techniques or methods used; and
(E) The results of such analyses.
(k) Signatory Requirements. All applications, reports, and
information submitted to the Tribe(s) shall be signed
and certified under section 6051.
(1) Reporting Requirements.
(1) Planned Changes. The permittee shall give notice
to the Tribe(s) as soon as possible of any planned
physical alterations or additions to the permitted
facility;
(2) Anticipated Non-compliance. The permittee shall
give advance notice to the Tribe(s) of any planned
changes in the permitted facility or activity
which may result in non-compliance with the permit
requirements.
(3) Transfers. This permit is not transferrable to
any person except after notice to the Tribe(s).
The Tribe(s) may require modification or
revocation and reissuance of the permit to change
the name of the permittee and incorporate such
other requirements as may be necessary under the
appropriate tribal Ordinance.
(4) Compliance Schedules. Reports of compliance or
non-compliance with, or any progress reports on,
interim and final requirements contained in any
compliance schedule of this permit shall be
submitted no later than fourteen (14) days
following each schedule date.
Section 6060. Severability. If any provision of this article or the
application thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of this
article which can be given effect without regard to the invalid
provision or application, and to this end the provisions of this
article are severable.
AIR POLLUTION CONTROL ORDINANCE
AIR POLLUTION CONTROL
Section 7000. Legislative Declaration. In order to protect,
maintain, and enhance the health, welfare, culture and traditions,
convenience and comfort of the members of the ______________Tribe(s)
and the health and welfare of all residents of the
________________Indian reservation and in order to facilitate the
enjoyment of nature, scenery, and other resources of the Tribe, it is
declared to be the policy of the Tribe of achieve the maximum
practical degree of air purity in every portion of the reservation.
To that end, it is the purpose of this article to require the use of
all available practical methods to reduce, prevent and control air
pollution throughout the entire reservation. It is further declared
that the prevention, abatement, and control of air pollution
throughout the entire reservation are matters of tribal concern and
are affected with the public interest and that provisions of this
article are enacted in the exercise of the police powers of this tribe
for the purpose of protecting the health, peace, safety, cultural
resources, and general welfare of the people of this reservation.
Section 7001. Definitions. As used in this article, unless the
context otherwise requires:
(a) "Air contaminant" means fumes, smoke, particulate
matter, vapor, gas, or any combination thereof, but it
does not include water vapor or steam condensate.
(b) "Air contamination source" means any source whatsoever,
at, from or by reason of which there is emitted or
discharged into the atmosphere any air contaminant.
(c) "Ambient air" means the surrounding or outside air.
(d) "Commission" means the Air Pollution Control Commission
created by section 7003.
(e) "Emission" means the discharge or release into the
atmosphere of one or more air contaminants.
(f) "Emission control regulation" means and includes any
standard promulgated by regulation which is applicable
to all air contamination sources within a specified
area and which prohibits or establishes limits for
specific types of emissions in such area, and also any
regulation which by its terms is applicable to a
specified type of a facility, process, or activity for
the purpose of controlling the extent, degree, or
nature of contamination emitted from such type of
facility, process, or activity, and also any regulation
adopted for the purpose of preventing or minimizing
emission or any air contaminant in potentially
dangerous quantities.
(g) "Person" means any individual, public or private
corporation, partnership, association, firm, trust,
estate, the Tribe or its departments and agencies, and
any other legal entity whatsoever which is recognized
by law as the subject of rights and duties.
(h) "Variance Board" means the Variance Board created by
section 7013.
Section 7003. Air Pollution Control Commission Created.
(a) There is hereby created (in the division/department of
_______________) the air pollution control commission,
which shall consist of (5) members as follows:
(1) One member designated by the tribal Health Board
appointed by the Tribal Chairperson/President;
(2) Four residents of this reservation who shall be
appointed by the Tribal Chairperson with the
consent of the Tribal Business Council.
(b) Appointments to the Commission shall be made so as to
include appropriate scientific, cultural, technical,
agricultural, and legal training within its own
membership; although no specific number of its members
shall be required to be so trained, although a majority
of members must be officially enrolled members of the
Tribe(s).
(c) Terms for appointments shall be for three years, except
that for appointments to begin January 1, 1981, two
shall be for terms expiring January 1, 1982, and two
for terms expiring January 1, 1984. Thereafter, the
three-year terms of all appointed members shall
commence on January 2 of the year of appointment. Any
vacancy occurring during the term of office of any
appointed member shall be filled by appointment by the
Tribal Chairperson of a qualified person for the
unexpired portion of the regular term.
(d) Each member of the Commission not otherwise in
full-time employment of the Tribe shall receive a per
diem of forty dollars for each day actually and
necessarily spent in the discharge of official duties,
but not to exceed twelve hundred dollars in any one
year; and all members shall receive traveling and other
necessary expenses actually incurred in the performance
of official duties.
(e) All members of the Commission shall have a vote. A
majority of the Commission shall constitute a quorum,
and the concurrence of a majority of the Commission in
any matter within its powers and duties shall be
required for any determination made by the Commission.
Section 7004. Duties of Air Pollution Control Commission.
(a) The commission shall develop and maintain a
comprehensive program for prevention, control, and
abatement of air pollution throughout the entire
reservation, including a program for control of
emissions from all significant sources of air
pollution, and shall promulgate ambient air goals for
every portion of the reservation.
(b) The commission shall adopt and modify such plans as may
be necessary for the implementation of such programs.
Ambient air quality standards and emission control
regulations shall be adopted and promulgated in
accordance with sections 7006 and 7007.
(c) The commission and the tribal board of health shall
hold a joint public hearing during the month of October
of each year in order to hear public comment on air
pollution problems within the reservation, alleged
sources of air pollution within the reservation, and
the availability of practical remedies therefor.
(d) On or before December 1 of each year, the Commission
shall report to the Tribal Chairperson on the
effectiveness of the provisions of this Article in
carrying out the legislative intent, as declared in
section 7000, and shall include in such report such
recommendations as it may have with respect to any
legislative changes that may be needed or desirable.
(e) The Commission shall receive all applications for
hearings concerning violations and all applications for
the granting of variances made pursuant to sections
7012 or 7014 and may, in its discretion, either set
such applications for hearing and determination by the
Commission in accordance with the provisions of
sections 7014 or 7015 or transmit such applications to
the variance board for hearing and determination in
accordance with the provisions of section 7015.
Section 7005. Commission - Additional Authority.
(a) The Commission shall have maximum flexibility in
developing an effective air pollution control program
and may promulgate such combination of regulations as
may be necessary or desirable to carry out the
legislative purpose set forth in section 7000. Such
regulations may include, but shall not be limited to:
(1) Division of the reservation into such control
zones or areas as may be necessary or desirable
for effective administration of the air pollution
control program;
(2) Classification and definition of different degrees
or types of air pollution; or
(3) Emission control regulations that are applicable to
the entire reservation, that are applicable only
within specified areas or zones of the reservation,
or that are applicable only when a specified class
of pollution is present.
(b) The Commission may hold public hearings, issue notice
of hearings, issue subpoenas requiring the attendance
of witnesses and the production of evidence, administer
oaths, and take such testimony as it deems necessary.
(c) The Commission may adopt such rules and regulations
governing procedures before the variance board as may
be necessary to assure that hearings before said board
will be fair and impartial.
(d) The Commission may exercise all incidental powers
necessary to carry out the purposes of this Article.
(e) The Commission may require the owner or operator, or
both, of any air contamination source to:
(1) Establish and maintain reports as prescribed by
the commission;
(2) Install, use, and maintain monitoring equipment or
methods as prescribed by the commission;
(3) Record sample emissions in accordance with such
methods, at such locations, at such intervals, and
in such manner as the commission shall prescribe;
and
(4) Provide such other information as the commission
may require.
Section 7006. Commission to Promulgate Ambient Air Quality Standards.
(a) In addition to the other powers and duties enumerated
in this article, the Commission shall have the power to
adopt, promulgate, amend, and modify such standards for
the quality of ambient air as may be appropriate or
necessary to carry out the purposes of this Article,
including, but not limited to:
(1) Standards which describe the maximum
concentrations of specifically described
contaminants that can be tolerated, consistent
with the protection of the good health of the
public at large; such standards may differ for
different parts of the reservation as may be
necessitated by variations in altitude,
topography, climate, or meteorology;
(2) Standards which describe the air quality goals
that are to be achieved by control programs within
specified periods of time; such standards may be
either reservation-wide or restricted to specified
control areas; and
(3) Standards which describe varying degrees of
contamination of ambient air.
(b) Ambient air standards shall include such requirements
for test methods and procedures as will assure that the
samples of ambient air tested are representative of the
ambient air.
Section 7007. Commission To Promulgate Air Emission Control
Regulations.
(a) As promptly as possible, the Commission shall adopt and
promulgate emission control regulations which require
the use of effective practical air pollution controls
for each significant source, potential source, and type
of source of air contamination throughout the entire
reservation and thereafter may modify such regulations
from time to time. In the formulation of each emission
control regulation, the Commission shall take into
consideration the following:
(1) The tribal policy regarding air pollution, as set
forth in section 7000;
(2) Federal recommendations;
(3) The degree to which the concentrations of certain
types of contaminants in certain portions of the
reservation require that emission control
regulations be more stringent than in other
portions of the reservation;
(4) The degree to which any particular types of
emission is subject to treatment, the availability
and feasibility of control, techniques, and the
extent to which the emission to be controlled is
significant;
(5) The continuous, intermittent, or seasonal nature
of the emission to be controlled;
(6) Whether the emission control regulation should be
applied throughout the entire reservation or only
in a specified portion of the reservation; and
(7) The need for specification of safety precautions
that should be taken with respect to any source or
potential source or type of source of air
contamination.
(b) Such emission control regulations may include, but
shall not be limited to, regulations pertaining to:
(1) Visible pollutants;
(2) Particulates;
(3) Sulfur oxides, sulfuric acids, hydrogen sulfide,
nitrogen oxides, carbon oxides, hydrocarbons,
fluorides, and any other chemical substance;
(4) Odors;
(5) Open burning of incidental refuse, open burning at
dumps, open burning for agricultural purposes,
open burning of junk automobiles, and any other
open burning activity;
(6) Organic solvents;
(7) Photochemical substances; and
(8) Toxic gases.
(c) The Commission has the duty to identify each type of
facility, process, and activity which produces or which
potentially or accidentally might produce significant
emission of air contaminants and shall promulgate an
emission control regulation for each such facility,
process, and activity, except for motor vehicles and
airplanes to the extent prohibited by federal law. The
requirements and prohibitions contained in such
regulations shall be set forth with as much
particularity and clarity as is practical. Upon
adoption of an emission control regulation under this
subsection (c) for the control of a specific facility,
process, or activity, such regulation shall apply to
the exclusion of other emission control regulations
adopted pursuant to subsection (b) of this section;
prior to such adoption, the general regulations adopted
pursuant to subsection (b) of this section shall be
applicable to such facility, process, or activity.
Emission control regulations adopted pursuant to this
section may include, but shall not be limited to,
regulations pertaining to the following facilities,
processes, and activities.
(1) Incinerator and incinerator design;
(2) Storage and transfer of petroleum products and any
other volatile substance;
(3) Activities which frequently result in particulate
matter becoming airborne, such as construction and
demolition operations and operation of parking
lots;
(4) Specifications, prohibitions, and requirements
pertaining to fuels and fuel additives, such as
tetraethyl lead;
(5) Wigwam waste burners, pulp mills, alfalfa
dehydrators, asphalt plants, and any other
industrial or commercial activity which tends to
emit air contaminants as a by-product;
(6) Industrial process equipment;
(7) Industrial spraying operations; or
(8) Storage and transfer of toxic gases.
(e) Among its emission control regulations, the commission
shall include appropriate regulations pertaining to
accidents, shutdowns, and other conditions which
justify temporary relief from controls.
(f) Each emission control regulation shall be operative
regard to any ambient air quality standard unless such
regulation expressly provides otherwise.
Section 7008. Commission - Procedures to be Followed in Setting
Standards and Regulations.
(a) Prior to adopting, promulgating, amending, or modifying
any ambient air standard authorized in Section 7006 or
any emission control regulation in Section 7007, the
Commission shall conduct a public hearing thereon.
Notice shall be given at least sixty (60) days prior to
the hearing and shall include each proposed regulation,
and shall be mailed to all persons who have filed with
the Commission a written request to receive such
notices.
(b) Any person desiring to propose a regulation differing
from the regulation proposed by the Commission shall
file such other proposal with the Commission not less
than twenty days prior to the hearing, and, when on
file such proposal shall be open for public inspection.
(c) Witnesses at the hearing shall be subject to
cross-examination by or on behalf of the commission and
by or on behalf of persons who have proposed
regulations pursuant to subsection (b) of this section.
(d) Regulations promulgated pursuant to sections 7006 and
7007 shall not take effect until thirty days after they
have been filed with the Secretary, Tribal Business
Council.
Section 7009. Inspection and Entry.
In addition to authority specified elsewhere in this
Article, the Tribe through its Air Pollution Control Commission has
the power to enter and inspect any property, premises, or place for
the purposes of investigating any actual, suspected, or potential
source of air pollution or air contamination or ascertaining
compliance or noncompliance with any emission standard or any order
promulgated under this Article; except that, if such entry or
inspection is denied or not consented to, the Commission or its agent
is empowered to and shall obtain from the tribal court a warrant to
enter and inspect any such property, premise, or place prior to entry
and inspection. The tribal court(s) of this reservation are empowered
to issue such warrants upon a proper showing of the need for such
entry and inspection. Any information relating to secret commercial
process, or method or manufacture, or production obtained in the
course of the inspection or investigation shall be kept confidential.
Section 7010. Air Pollution Emergencies Endangering Public Health.
(a) Whenever the Commission shall determine, after
investigation, that any person is either engaging in
any activity involving significant risk of air
contamination or is discharging or causing to be
discharged into the atmosphere, directly or indirectly,
any air contaminant and such activity or discharge
constitutes a clear, present, and immediate danger to
the health of the public, or that any such activity or
discharge of air contaminants, if permitted to continue
unabated, will result in a condition of clear, present,
and immediate danger to the health of the public, the
Commission shall:
(1) Issue a written cease and desist order to said
person requiring immediate discontinuance of such
activity or discharge of such contaminant into the
atmosphere, and upon receipt of such order, such
person shall immediately discontinue such activity
or discharge; or
(2) Apply to any tribal court of this Tribe for a
temporary restraining order, preliminary
injunction, or permanent injunction as provided
for in the tribal rules of civil procedure. Any
such action in the tribal court shall be given
precedence over all matters pending in such tribal
court. The institution of such injunction
proceedings by the Commission shall confer upon
said tribal court exclusive jurisdiction to
determine finally the subject matter of the
proceeding; or
(3) Both issue such a cease and desist order and apply
for any such restraining order or injunction.
Section 7011. Air Contaminant Emission Notices and Emission Permits.
(a) After ninety days from January 1, 1981, no person shall
permit emission of air contaminants from, or
construction or alteration of, any facility, process,
or activity except residential structures, from which
air contaminants are, or are to be, emitted through any
permanently located chimney, stack, pipe, or other
conduit unless and until an air contaminant emission
notice has been filed with the Tribe. A revised
emission notice shall be filed whenever a significant
change in emissions is anticipated or has occurred.
(b) Each such notice shall specify the location at which
the proposed emission will occur, the name and address
of the person operating or owning such facility,
process, or activity, the nature of such facility,
process, or activity, and an estimate of the quantity
and composition of the expected emission.
(c) If the information required by subsection (a) of this
section is on file with the Tribe on or after January
1, 1980, such information shall be deemed to constitute
compliance with the requirements of said subsection (a)
as to the emission covered thereby.
(d) No person shall construct or substantially alter any
building, facility, structure, or installation, except
single family residential dwellings, or install any
machine, equipment or other device, or commence the
conduct of any activity, or commence performance of any
combinations thereof, or commence operations of any of
the same which will or does constitute a new air
contamination source without first obtaining or having
a valid permit therefor from the Commission. The
Commission shall establish rules, regulations, and
procedures in accordance with the provisions of this
article for the issuance or denial of permits which
shall be in conformity with the purposes of this
article as set forth in section 7000. Such procedures
shall include, but not be limited to, the following:
(1) Filing an application with the Tribe which may
include such relevant plans, specifications, air
quality data, and other information as the Tribe
may reasonably request;
(2) The Tribe shall prepare its preliminary analysis
of the effect upon the ambient air quality and the
extent of emission control within twenty days
after date on which an application is filed.
(3) For those types of projects or activities defined
or designated by the commission as warranting
public comment with respect thereto, the Tribe
shall within fifteen days after it has prepared
its preliminary analysis give public notice of the
proposed project or activity by at least one
publication in a newspaper of general circulation
and shall receive and consider public comment
thereon for a period of thirty days thereafter.
(4) Within thirty days following the period for public
comment, or within fifteen days after the
preparation of its preliminary analysis where no
delay for public comment is required, the Tribe
shall grant the permit unless it determines that
the proposed project or activity would not meet
the applicable emission standards or regulations
of the commission. Any permit issued by the Tribe
may contain such terms and conditions as it deems
necessary for the proposed project or activity to
qualify for a permit. If any of such terms or
conditions of the permit are violated, the
division may revoke the permit. If the Tribe
fails to act upon the application within the
prescribed time, the permit shall be deemed to
have been granted.
(5) If the Tribe denies or revokes a permit, the
applicant may request a conference with the
commission or a hearing before the commission in
accordance with the provisions of section 7015.
The Commission may delegate the responsibility to
hold a conference or hearing with respect to any
such request to the variance board.
(6) Within thirty days after such conference or
hearing, the Commission or variance board shall
issue an order either affirming or reversing the
decision of the Commission. If the decision or
revocation of the Commission reversed, the
Commission or variance board shall order the
issuance or reinstatement of the permit which
order may contain such terms and conditions as
shall be necessary and reasonable.
(7) Orders of the Commission or variance board shall
be final upon the date of issuance.
Section 7012. Enforcement.
(a) The Tribe shall enforce compliance with the emission
control regulations promulgated pursuant to the
provisions of section 7007.
(b) In case any written and verified compliant shall be
filed with the Tribe alleging that, or in case the
Tribe itself shall have cause to believe that, any
person is violating any emission control regulation,
the Tribe shall cause a prompt investigation to be
made, and, if the person who makes such investigation
on behalf of the Tribe finds after such investigation
that a violation of any such regulation exists, he
shall promptly so notify both the alleged violator and
the commission in writing. Thereupon, the Tribe shall
diligently endeavor to obtain voluntary abatement of
such violation.
(c) After notice has been given pursuant to subsection (b)
of this section, but in no event later than six months
after the giving of such notice, if the alleged
violation has not been abated, the Tribe shall cause to
be issued and served upon the person allegedly
violating any such regulations a written order which
shall specify the provision of the emission control
regulation of which such person is said to be in
violation and a statement of the manner in which such
person is said to violate it, and such order shall
require the person so complained against to cease and
desist from such violation within such reasonable time
as the Tribe may determine, but not to exceed six
months.
Section 7013. Variance Board.
(a) There is hereby created a variance board which shall
consist of three members as follows:
(1) One member designated by the tribal Health Board
to represent said Board in matters of air
pollution in the interests of public health of the
people of the reservation;
(2) One member who is an enrolled, resident member of
the Tribe and who is not from industry;
(3) One member as a representative of the
public-at-large and who may be a non-member of the
Tribe and who may be from industry.
(b) All members shall be appointed by the Tribal
Chairperson, upon the advice and consent of a majority
of the Tribal Business Council.
(c) All members shall hold office for terms of four years
and until their successors are selected and qualified.
The member designated by the tribal Health Board shall
serve at the discretion of said board.
(d) The variance board shall:
(1) Elect its chairperson annually from its members
for a term of one year;
(2) Meet at least yearly, but special meetings of the
variance board may be called by its chairperson
upon her own initiative or by the commission, and
such meeting shall be called by the chairperson
upon the receipt by her of a written request
therefor signed by one or more members of said
variance board.
(3) Keep a written record of its proceedings.
(e) Three members shall constitute a quorum, and the
concurrence of at least a majority of all members of
the variance board in any matter within its powers and
duties shall be required for any determination made by
said variance board.
(f) At least ten (10) days prior to each meeting, written
notice shall be given to each member of the variance
board of the time, place, and purpose of such meeting.
(g) Each member of the variance board shall receive a per
diem of forty ($40) dollars for each day actually spent
in the discharge of official duties, not to exceed
twelve hundred ($1200) in any one year; and shall be
reimbursed for necessary and actual expenses incurred
in the performance of her duties under this article.
Section 7014. Variances.
(a) The variance board or commission may grant a variance
suspending or modifying the enforcement of any emission
control regulation or any rule, regulation, or
enforcement order issued pursuant to this Article
against any person whenever the said variance board or
commission shall determine that:
(1) Control techniques are not available or that
compliance with applicable emission control
regulations from which a variance is sought would
create an unreasonable economic burden; and
(2) The granting of such variance would be consistent
with, and aid in, implementing the legislative
policy as set forth in section 7000.
(b) The variance board or the Commission shall grant a
variance suspending or modifying the enforcement of any
emission control regulation or any rule, regulation, or
enforcement order issued pursuant to this Article
against any person whenever the said variance board or
the Commission shall determine that strict compliance
with any provision of, or order issued pursuant to,
this Article would result in an arbitrary and
unreasonable taking of property or in the practical
closing of any lawful business or activity and such
would be without sufficient corresponding public
benefit.
(c) The variance shall be granted, terminated, or modified
by the variance board or the Commission only after a
hearing before it held pursuant to the provisions of
this article. A variance may be granted with respect
to any existing or proposed facility, process, or
activity. Hearings may be requested either by the
variance board, the Commission, the Tribe, or by any
person applying for or having received such a variance.
(d) Any variance granted pursuant to the provisions of this
article shall be granted for such period of time and
under such conditions as shall be specified by the
variance board or the commission. The failure to meet
any condition of the variance without prior written
permission of the said variance board or the Commission
shall render such variance null and void. The variance
board shall review, at least annually, any variance
that has been granted to determine whether the terms
and conditions of said variance have been complied with
and whether the continuance of the variance is
justified.
Section 7015. Hearings.
(a) Not less than fifteen days after a hearing has been
requested, the variance board or the Commission, as the
case may be, shall grant such request and set a time
and place therefor.
(b) The Tribe shall appear as a party in any hearing before
the variance board or the Commission and shall have the
same judicial review as any other party.
(c) All testimony taken at any such hearing before the
variance board or the commission shall be under oath or
affirmation. A full and complete record of all
proceedings and testimony presented shall be taken and
filed.
(d) Any information relating to secret processes or methods
of manufacture or production which may be required,
ascertained, or discovered shall not be publicly
disclosed in public hearings or otherwise and shall be
kept confidential by any member, officer, or employee
of the variance board, the Commission, or the Tribe,
but any person seeking to invoke the protection of this
section in any hearing for a variance shall bear the
burden of proving its applicability.
(e) At any hearing, any person who is affected by the
proceeding and whose interests are not already
adequately represented shall have the opportunity to be
a party thereto upon prior application to and approval
by the variance board or commission, in its sole
discretion, as deemed reasonable and proper by said
variance board and Commission, and such person shall
have the right to be heard and to cross-examine any
witness.
(f) After due consideration of the written and oral
statements, the testimony, and the arguments presented
at any such hearing, the variance board or Commission
shall enter its findings and final order, based upon
evidence in the record, or make such final
determination of the matter as it shall deem
appropriate.
(g) In all proceedings before the variance board or the
Commission with respect to any alleged violation of any
emission control regulation or order, the burden of
proof shall be upon the Tribe.
(h) The applicant for a variance shall bear the burden of
proof.
(i) Variances, orders, and determinations of the variance
board shall become final within thirty days from the
date on which they are issued, unless within such
period the variance board grants a rehearing, or
unless, within such period the Commission concludes
that said variance, order or determination interferes
with the attainment of the objectives of this Article,
as set forth in section 7000. If the Commission so
concludes, it shall, within said thirty-day period,
notify the applicant of such conclusion, including the
nature of the interference involved, and allow the
applicant ten days in which to request a hearing before
the commission on said variance, order, or
determination, which hearing shall be set and held in
accordance with the provisions of section 7014 and of
this section. Following the hearing before the
Commission, or if no hearing is requested, the
Commission shall enter its final order affirming or
modifying said variance, order, or determination.
(j) Every hearing granted by the variance board or the
Commission shall be conducted by either body or by a
hearing officer designated by either body.
Section 7016. Judicial Review.
(a) Any final order or determination by the variance board,
the Tribe, or the Commission shall be subject to
judicial review in accordance with the provisions of
this article and the provisions.
(b) Any party may move the court to remand the case to the
variance board, the Tribe, or the Commission in the
interests of justice for the purpose of adducing
additional specified and material evidence and findings
thereon; but such party shall show reasonable grounds
for the failure to adduce such evidence previously
before the variance board, the Tribe or the Commission.
(c) Any proceeding for judicial review of any final order
or determination of the variance board, the Tribe, or
the Commission shall be filed in the Tribal court for
the district in which is located the air contamination
source affected, and it shall be filed within twenty
days after the date of said final order or
determination.
Section 7017. Injunctions.
(a) In the event any person fails to comply with a cease
and desist order that is not subject to a stay pending
administrative or judicial review, the commission may
request the Tribal attorney to bring, and if so
requested it is his duty to bring, a suit for an
injunction to prevent any further or continued
violation of such order. In any such suit the final
findings of the Tribe or Commission, based upon
evidence in the record, shall be prima facie evidence
of the facts found therein:
Section 7018. Civil Penalties.
(a) Penalties shall be determined and collected by a tribal
court upon action instituted by the Tribe for the
determination and collection of said penalty under this
section and in accordance with the following provision:
(1) Any person who violates any final cease and desist
order which is not subject to a stay pending
judicial review and which has been issued pursuant
to this Article shall be subject to a civil
penalty of not more than two thousand five hundred
dollars ($2,500) per day for each day during which
such violation occurs.
(b) Penalties collected shall be transmitted in a timely
fashion to the Tribal Finance Office for deposit in the
tribal general fund.
Section 7019. Severability. If any provision of this article or the
application thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of this
article which can be given effect without regard to the invalid
provision or application, and to this end the provisions of this
article are severable.
RADIATION CONTROL ORDINANCE
Section 8000. This ordinance shall be known as the "Radiation Control
and Protection Ordinance"
Section 8001. Registration of Ionizing Radiation Sources. The Tribe,
through the tribal Health Board, shall have the power to require the
registration of ionizing radiation sources and to adopt necessary
rules and regulations to carry out the provisions of this Act for
controlling exposure to harmful ionizing radiation.
Section 8002. Enforcement.
(a) The Tribe, through the tribal Health Board, shall
establish and develop, carry out and enforce a
Radiation Control Program pursuant to rules and
regulations adopted by the Health Board and any
federal-tribal agreements pertaining to sources of
ionizing radiation.
(b) In case any written or verified complaint shall be
filed with the Tribe alleging that, or in case the
Tribe itself shall have cause to believe that, any
person is violating any radiation Control Ordinance
provision or promulgated rule, the Tribe shall cause a
prompt investigation to be made, and, if the person who
makes the investigation on behalf of the Tribe finds
after such investigation that a violation exists, she
shall promptly so notify both the alleged violator and
the tribal Health Board in writing. Thereupon, the
Tribe, through its Health Board, shall diligently
endeavor to obtain voluntary abatement of such
violation.
(c) After notice has been given pursuant to subsection (b)
of this section, but in no event later than six months
after the giving of such notice, if the alleged
violation has not been abated, the Tribe shall cause to
be issued and served upon the person allegedly
violating any such control regulation a written order
which shall specify the provision or the control
regulation of which such person is said to violate it,
and such order shall require the person so complained
against to cease and desist from such violation within
such reasonable time as the Tribe may determine, but
not to exceed six (6) months.
Section 8003. Inspection and Entry.
In addition to the authority specified elsewhere in this
Article, the Tribe, through its Board of Health has the power to enter
and inspect any property throughout the reservation, premises, place
for the purposes of investigating any actual, suspected, or potential
source of radiation pollution or ascertaining compliance or
non-compliance with any radiation standard, rule, or order promulgated
under this Article; except that, if such entry or inspection is
denied or not consented to, the Tribe or its Board is empowered to
obtain from the tribal court a warrant to enter and inspect such
property, premises, or place prior to entry and inspection. The
tribal courts of this reservation are empowered to issue such a
warrant upon a proper showing of the need for such entry and
inspection, any information relating to secret commercial process, or
method or manufacture shall be kept confidential.
Section 8004. Powers and Duties.
(a) The (Board, Tribe, Department) is designated as the
Radiation Control Agency of this Tribe for the entire
reservation.
(b) Pursuant to rules and regulations as provided in
Section 8001, the Tribe shall issue pertaining to
radioactive materials and require registration of other
sources of ionizing radiation.
(c) The Tribe shall develop and conduct programs for
evaluation and control of hazards associated with the
use of any and all radioactive materials, including
milling, mining, and disposal processes, and other
sources of ionizing radiation.
(d) The Tribe may institute training programs for the
purpose of qualifying personnel to carry out provisions
of this Article and may make said personnel available
for participation in any program of the federal
government, states, and interstate agencies in
furtherance of the purposes of this Article.
(e) In the event of an emergency relating to any source of
ionizing radiation which endangers the public peace,
health, or safety, the Tribe shall have the authority
to issue such orders for the protection of the public
health and safety as may be appropriate, including
orders to lay an embargo upon or impound radioactive
materials and other sources of ionizing radiation in
the possession of any person not equipped to observe or
who fails to observe the provisions of this Article or
any rules or regulations promulgated under this Article.
(f) In order to provide for the concentration, storage, or
permanent disposal of radioactive materials consistent
with adequate protection of public health and safety,
the Tribe may acquire by gift, transfer from another
tribal Department or Agency, or other transfer, any and
all lands, buildings, and grounds suitable for such
purposes. Any such acquisition shall be subject to a
referendum vote of the enrolled tribal members.
Section 8005. Rules and Regulations.
(a) The Tribe shall formulate, adopt, and promulgate rules
and regulations as provided in subsection (b) of this
section which shall cover subject matter relative to
radioactive materials and other sources of ionizing
radiation which shall include, but not be limited to:
licenses and registration, records, permissable levels
of exposure, notification and reports of accidents,
technical qualification of personnel, handling,
transportation, and storage, waste disposal posting,
and labeling of hazardous sources and generators,
surveys, and monitoring.
(b) All such regulations may be modeled after and, in any
case, shall be no less stringent than those proposed by
governments for surrounding states.
(c) The rules and regulations adopted pursuant to this
article shall/may be construed to limit the kind or
amount of radiation that may be intentionally applied
to a person for diagnostic or therapeutic purposes by
or under the direction of practitioners of dentistry or
medicine.
Section 8006. Injunction Proceedings.
If, in the judgement of the Tribe, any person has engaged in
on is about to engage in any acts or practices which constitute a
violation of any provision of this Article, rule, regulation, or order
issued pursuant to this Article, the tribal attorney shall, at the
request of the Tribe, make application to the tribal court for an
order enjoining such acts or practices or for an order directing
compliance with the provisions of this Article and all rules,
regulations, and orders issued under this Article.
Section 8007. Prohibited Acts. Penalties.
(a) No person shall acquire, own, possess, or use any
radioactive material occurring naturally or produced
artificially without having first been granted a
license therefor from the Tribe, nor shall she transfer
to another or dispose of such material without first
having been granted approval of the Department therefor.
(b) No person shall knowingly use, manufacture, produce,
transport, transfer, receive, send, acquire, own, or
Possess any source of ionizing radiation unless such
person is licensed by or registered with the Tribe.
(c)(1) Civil penalties, not to exceed ten thousand dollars
($10,000) per day, shall be determined and collected
by a tribal court upon action instituted by the
Tribe for the determination and collection of said
penalty under this section and in accordance with
subsection (2);
(2) Any person who violates any final cease and desist
order not subject to stay pending judicial review
and which has been issued.
(d) Any person who violates the provisions of subsections
(a) and (b) of this subsection is, in addition to civil
penalties that may be applied under subsection (c),
guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not less than one
hundred dollars ($100) nor more than one hundred
dollars ($100), or by imprisonment in the tribal jail
at his own cost for not less than thirty (30) days nor
more than one hundred and eighty (180) days, or by both
such fine and imprisonment. Each day shall constitute
a separate misdemeanor.
Section 8008. Severability. If any provision of this article or the
application thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of this
article which can be given effect without regard to the invalid
provision or application, and to this end the provisions of this
article are severable.
NOISE CONTROL
Section 9000. Legislative Declaration. The tribal business council
for the ____________Tribe(s) finds and declares that noise is a major
source of environmental pollution and represents a threat to the
serenity and quality of life on the _______________ reservation.
Excess noise often has adverse and debilitating effects on human
beings and wildlife, thus contributing to societal dislocation,
cultural interference, and economic loss to the affected communities.
Therefore, it is declared that the prevention, abatement, and control
of noise pollution throughout the entire reservation are matters of
tribal concern and are affected with the public interest and that
provisions of this Article are enacted in the exercise of the police
powers of this Tribe for the purpose of protecting the health, peace,
safety, cultural resources, and general welfare of the people of this
reservation. Accordingly, it is the policy of the tribal legislative
body to establish statewide standards for noise level limits for
various time periods and areas.
Section 9001. Definitions. As used in this Article, unless the
context otherwise requires:
(a) "Commercial zone" means:
(1) An area where offices, clinics, and the facilities
needed to serve them are located;
(2) An area with local shopping and service
establishments located within walking distances of
the residents served;
(3) A tourist-oriented area where hotels, motels, and
gasoline stations are located;
(4) A large integrated regional shopping center;
(5) A business strip along a main street containing
offices, retail businesses, and commercial
enterprises;
(6) A central business district; or
(7) A commercially dominated area with multiple-unit
dwellings.
(b) "db(a)" means sound levels in decibels measured on the
"A" scale of a standard sound level meter having
characteristics defined by the American National
Standards Institute, Publication S1.4 - 1971.
(c) "Decibel" is a unit used to express the magnitude of a
change in sound level. The difference in decibels
between two sound pressure levels is twenty times the
common logarithm of their ratio. In sound pressure
measurements sound levels are defined as twenty times
the common logarithm of the ratio of that sound
pressure level to a reference level of 2 x 10-5 N/m(2)
(Newton's/meter squared). As an example of the effect
of the formula, a three-decibel change is a one hundred
percent increase or decrease in the sound level, and a
ten-decibel change is a one thousand percent increase
or decrease in the sound level.
(d) "Industrial zone" means an area in which noise
restrictions on industry are necessary to protect the
value of adjacent properties for other economic
activity but shall not include agricultural operations.
(e) "Light industrial and commercial zone" means:
(1) An area containing clean and quiet research
laboratories;
(2) An area containing light industrial activities
which are clean and quiet;
(3) An area containing warehousing; or
(4) An area in which other activities are conducted
where the general environment is free from
concentrated industrial activity.
(f) "Residential zone" means an area of single-family or
multifamily dwellings where businesses may or may not
be conducted in such dwellings. The zone includes
areas where multiple-unit dwellings, high-rise
apartment districts, and redevelopment districts are
located. A residential zone may include areas
containing accommodations for transients such as motels
and hotels and residential areas with limited office
development, but it may not include retail shopping
facilities. "Residential zone" includes hospitals,
nursing homes and similar institutional facilities.
Section 9002. Maximum Permissible Noise Levels.
(a) Every activity to which this Article is applicable
shall be conducted in a manner so that any noise
produced is not objectionable due to intermittence,
best frequency, or shrillness. Sound levels of noise
radiating from a property line at a distance of
twenty-five feet or more therefrom in excess of the db
(A) established for the following time periods and
zones shall constitute prima facie evidence that such
noise is a public nuisance:
7:00 a.m. to 7:00 p.m. to
Zone next 7:00 p.m. next 7:00 a.m.
Residential 55 db(A) 50 db(A)
Commercial 60 db(A) 55 db(A)
Light industrial 70 db(A) 65 db(A)
Industrial 80 db(A) 75 db(A)
(b) In the hours between 7:00 a.m. and the next 7:00 p.m.,
the noise levels permitted in subsection (1) of this
section may be increased by ten db (A) for a period of
not to exceed fifteen minutes in any one-hour period.
(c) Periodic, impulsive, or shrill noises shall be
considered a public nuisance when such noises are at a
sound level of five db (A) less than those listed in
subsection (1) of this section.
(d) This Article is not intended to apply to the operation
of aircraft or to other activities which are subject to
federal law with respect to noise control.
(e) Construction projects shall be subject to the maximum
permissible noise levels specified for industrial zones
for the period within which construction is to be
completed pursuant to any applicable construction
permit issued by proper authority or, if no time
limitation is imposed, for a reasonable period of time
for completion of project.
(f) All railroad rights-of-way shall be considered as
industrial zones for the purposes of this Article, and
the operation of trains shall be subject to the maximum
permissible noise levels specified for such zone.
(g) This Article is not applicable to the use of property
for purposes of conducting speed or endurance events
involving motor or other vehicles, but such exception
is effective only during the specific period of time
within which such use of the property is authorized by
the political subdivision or governmental agency having
lawful jurisdiction to authorize such use.
(h) For the purposes of this Article, measurements with
sound level meters shall be made when the wind velocity
at the time and place of such measurement is not more
than five miles per hour.
(i) In all sound level measurements, consideration shall be
given to the effect of the ambient noise level created
by the encompassing noise of the environment from all
sources at the time and place of such sound level
measurement.
Section 9003. Action to Abate. Wherever there is reason to believe
that a nuisance exists, as defined in section 9002, any person within
the ____________reservation may maintain an action in equity in the
tribal court of the district in which the alleged nuisance exists to
abate and prevent such nuisance and to perpetually enjoin the person
conducting or maintaining the same and the owner, lessee, or agent of
the building or place in or upon which such nuisance exists from
directly or indirectly maintaining or permitting such nuisance. When
proceedings by injunction are instituted, such proceedings shall be
conducted under the tribal court rules of civil procedure. The court
may stay the effect of any order issued under this section for such
time as is reasonable necessary for the defendant to come into
compliance with the provisions of this Article.
Section 9004. Violation of Injunction - Penalty. Any violation or
disobedience of any injunction or order expressly provided for in
section 9003 shall be punished as a contempt of court by a fine of not
less than one hundred dollars ($100) nor more than five hundred
dollars ($500). Each day in which a person is in violation of the
injunction established by the court shall constitute a separate
offense. The court shall give consideration in any such case to the
practical difficulties involved with respect to effecting compliance
with the requirements of any order issued by the court.
Section 9005. Severability. If any provision of this article or the
application thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of this
article which can be given effect without regard to the invalid
provision or application, and to this end the provisions of this
article are severable.
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