TITLE
4 - NATURAL RESOURCES AND ENVIRONMENT, CH. 16-17
CHAPTER 4-1 FISH, WILDLIFE AND RECREATION
CHAPTER 4-2 WATERCRAFT REGISTRATION
CHAPTER 4-3 LAND USE AND DEVELOPMENT
CHAPTER 4-4 CULTURAL RESOURCES PROTECTION
CHAPTER 4-5 ON-SITE WASTEWATER TREATMENT
AND DISPOSAL
CHAPTER 4-6 MINING PRACTICES WATER QUALITY
CHAPTER
4-7 FOREST PRACTICES WATER QUALITY
CHAPTER
4-8 WATER QUALITY STANDARDS
CHAPTER 4-9 HYDRAULICS PROJECT PERMITTING
CHAPTER 4-10 WATER USE AND PERMITTING
CHAPTER
4-11 RANGELAND MANAGEMENT
CHAPTER 4-12 FOREST PROTECTION
CHAPTER 4-13 SOLID WASTE
CHAPTER 4-14 WILD HORSES
CHAPTER
4-15 SHORELINE MANAGEMENT
CHAPTER
4-16 HAZARDOUS SUBSTANCE CONTROL
CHAPTER 4-17 PUBLIC FACILITIES FINANCING
CHAPTER
4-18 INTERIM CONTROL CHAPTER TO REGULATE THE CONSTRUCTION/OPERATION
OF AIR EMISSION SOURCES DECLARATION AND DEFINITIONS
CHAPTER 4-19 FIRE MANAGEMENT
CHAPTER 4-16 HAZARDOUS SUBSTANCE CONTROL
4-16-1
Short Title
This Chapter
shall be known as the Colville Hazardous Substances Control.
4-16-2 Declaration of Policy
(a) The
beneficial stewardship of the land, air, and waters of the Colville
Indian Reservation is a solemn obligation of the present generation
for the benefit of future generations.
(b) Each
person either residing on or doing business within the exterior boundaries
if the Colville Indian Reservation ("Reservation Population") benefits
from a healthful environment and each person has a responsibility to
preserve and protect the quality of the Reservation Environment.
(c) The
Colville Business Council finds that an emergency currently exists which
requires the immediate action of the Council to secure the preservation
of life, health, property, and natural resources of the Tribe, its people,
and fee and trust lands. Pollution sources are currently known to, or
suspected of; contaminating the Reservation air, land, surface Water
and ground waters ("Reservation Environment") for which existing federal
law may not apply.
(d) The
main purpose of this Chapter is to address the existing emergency and
provide remedial law for the cleanup of hazardous substances sites and
to prevent the creation of future hazards due to improper disposal of
hazardous substances on or into the Reservation Environment.
4-16-3 Department's Powers and Duties
(a) The
Department may exercise the following powers in addition to any other
powers granted by Tribal or federal law:
(1) Investigate,
provide for investigating, or require potentially liable persons to
investigate any releases or threatened releases of hazardous substances,
including but not limited to inspecting, sampling, or testing to determine
the nature or extent of any release or threatened release. If there
is a reasonable basis to believe that a release or threatened release
of a hazardous substance may exist, the Department's authorized employees,
agents, or contractors may enter upon any property and conduct investigations.
The Department shall give reasonable notice before entering property
unless an emergency prevents such notice. The Department may by subpoena
require the attendance or testimony of witnesses and the production
of documents or other information that the Department deems necessary;
(2) Conduct
provide for conducting, or require potentially liable persons to conduct
remedial actions including investigations under section 4-1 6-3 (a),
subpart (1) to remedy releases or threatened releases of hazardous
substances. In carrying out such powers, the Department's authorized
employees, agents, or contractors may enter upon property. The Department
shall give reasonable notice before entering property unless an emergency
prevents such notice. In conducting, providing for, or requiring remedial
action, the Department shall give preference to permanent solutions
to the maximum extent practicable and shall provide for or require
adequate monitoring to ensure the effectiveness of the remedial action;
(3) Retain
contractors and consultants to assist the Department in carrying out
investigations and remedial actions;
(4) Carry
out all Tribal programs authorized under the federal cleanup law,
the Resource Conservation and Recovery Act 42 U. S.C. § 6901
et seq., as amended, and other federal laws;
(5) Classify
substances as hazardous substances for purposes of section 4-16-12(10);
(6) Issue
orders or enter into consent decrees or agreed orders that include,
or issue written opinions under section 4-16-3(a), subpart (9) that
may be conditioned upon, deed restrictions or other appropriate institutional
controls as may be necessary to protect human health and the environment
from a release or threatened release of a hazardous substance from
a facility. Prior to establishing a deed restriction or other appropriate
institutional control under this subsection, the Department shall
notify and seek comment from the Tribal Land Use Planning Department
with jurisdiction over the real property subject to such restriction;
(7) Enforce
the application of permanent and effective institutional controls
that are necessary for a remedial action to be protective of human
health and the environment;
(8) Require
holders to conduct remedial actions necessary to abate an imminent
or substantial endangerment pursuant to section 4-16-12(o), subpart
(3), sub-subpart (B)(iii);
(9) Provide
informal advice and assistance to persons regarding the administrative
and technical requirements of this Chapter. This may include site-specific
advice to persons who are conducting or otherwise interested in independent
remedial actions. Any such advice or assistance shall be advisory
only, and shall not be binding on the Department. As a part of providing
this advice and assistance for independent remedial actions, the Department
may prepare written opinions regarding whether the independent remedial
actions or proposals for those actions meet the substantive requirements
of this Chapter or whether the Department believes further remedial
action is necessary at the facility. The Department may collect, from
persons requesting advice and assistance, the costs incurred by the
Department in providing such advice and assistance; however, the Department
shall, where appropriate, waive collection of costs in order to provide
an appropriate level of technical assistance in support of public
participation. The Tribe, Department, and officers, agents, attorneys,
and employees of the Tribe are immune from all liability, and no cause
of action of any nature may arise from any act or omission in providing,
or failing to provide, informal advice and assistance; and
(10)
Take any other actions necessary to carry out the provisions of this
Chapter, including proposing that the Council amend this Chapter.
(b) The
Department shall to the best of its ability implement all provisions
of this Chapter, including the cleanup standards further described in
section 4-16-10 and to the maximum extent practicable, institute investigative
and remedial actions where appropriate; and the Department shall:
(1) Provide
for public notice of investigative plans, clean up plans, or remedial
plans and other significant actions taken under this Chapter;
(2) Require
the reporting by an owner or operator of releases of hazardous substances
to the environment that may be a threat to human health or the environment
within ninety (90) days of discovery, including such exemptions from
reporting as the Department deems appropriate, however this requirement
shall not modify any existing requirements provided for under other
laws
(3) Establish
reasonable deadlines for initiating an investigation of a hazardous
waste site after the Department receives information that the site
may pose a threat to human health or the environment and other reasonable
deadlines for remedying releases or threatened releases at the site;
and
(4) Enforce
clean-up standards set forth in section 4-16-10; and
(c) The
Department may, as available resources permit, establish a program to
identify potential hazardous waste sites and to encourage persons to
provide information about hazardous waste sites.
4-16-4 Standard of Liability-Settlement
(a) Except
as provided in section 4-16-4(c), the following persons are liable with
respect to a facility:
(1) The
owner or operator of the facility;
(2) Any
person who owned or operated the facility at the time of disposal
or release of the hazardous substances;
(3) Any
person who owned or possessed a hazardous substance and who by contract,
agreement, or otherwise arranged for disposal or treatment of the
hazardous substance at the facility, or arranged with a transporter
for transport for disposal or treatment of the hazardous substances
at the facility, or otherwise generated hazardous wastes disposed
of or treated at the facility;
(4) Any
Person:
(A)
Who accepts or accepted any hazardous substance for transport to
a disposal, treatment, or other facility selected by such person
from which there is a release or a threatened release for which
remedial action is required, unless such facility, at the time of
disposal or treatment, could legally receive such substance; or
(B)
Who accepts a hazardous substance for transport to such a facility
and has reasonable grounds to believe that such a facility is not
operated in accordance with Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6901 et seq., as amended, and programs
appropriately delegated under RCRA; and
(5) Any
person who both sells a hazardous substance and is responsible for
written instructions for its use if:
(A)
The substance is used according to the instructions; and
(B)
The use constitutes a release for which remedial action is required
at the facility.
(b) Each
person who is liable under this section is strictly liable, jointly
and severally, for all remedial action costs and for all natural resource
damages resulting from the releases or threatened releases of hazardous
substances. The Department, is empowered to recover all costs and damages
from persons liable therefor.
(c) The
following persons are not liable under this section:
(1) Any
person who can establish that the release or threatened release of
a hazardous substance for which the person would be otherwise responsible
was caused solely by:
(A)
An act of God; 4
(B)
An act of war; or
(C)
An act or omission of a third party (including but not limited to
a trespasser) other than:
(i)
An employee or agent of the person asserting the defense, or
(ii)
Any person whose act or omission occurs in connection with a contractual
relationship existing, directly or indirectly, with the person
asserting this defense to liability.
This
defense only applies where the person asserting the defense has
exercised the utmost care with respect to the hazardous substance,
the foreseeable acts or omissions of the third party, and the
foreseeable consequences of those acts or omissions;
(2) Any
person who is an owner, past owner, or purchaser of a facility and
who can establish by a preponderance of the evidence that at the time
the facility was acquired by the person, the person had no knowledge
or reason to know that any hazardous substance, the release or threatened
release of which has resulted in or contributed to the need for the
remedial action, was released or disposed of on, in, or at the facility.
This section 4-16-4(c), subpart (2) is limited as follows:
(A)
To establish that a person had no reason to know, the person must
have undertaken, at the time of acquisition, all appropriate inquiry
into the previous ownership and uses of the property, consistent
with good commercial or customary practice in an effort to minimize
liability. Any court interpreting this section 4- 1 6-4(c), subpart
(2) shall take into account any specialized knowledge or experience
on the part of the person, the relationship of the purchase price
to the value of the property if uncontaminated, commonly known or
reasonably ascertainable information about the property, the obviousness
of the presence or likely presence of contamination at the property,
and the ability to detect such contamination by appropriate inspection;
(B)
The defense contained in this section 4-16-4(c), subpart (2) is
not available to any person who had actual knowledge of the release
or threatened release of a hazardous substance when the person owned
the real property and who subsequently transferred ownership of
the property without first disclosing such knowledge to the transferee;
(C)
The defense contained in this section 4-16-4(c), subpart (2) is
not available to any person who, by any act or omission, caused
or contributed to the release or threatened release of a hazardous
substance at the facility;
(3) Any
natural person who uses a hazardous substance lawfully and without
negligence for any personal or domestic purpose in or near a dwelling
or accessory structure when that person is:
(A)
A resident of the dwelling;
(B)
A person who, without compensation, assists the resident in the
use of the substance; or
(C)
A person who is employed by the resident but who is not an independent
contractor;
(4) Any
person who, for the purpose of growing food crops, applies pesticides
or fertilizers without negligence and in accordance with all applicable
Tribal and federal laws and regulations.
(d) There
may be no settlement by the Department with any person potentially liable
under this Chapter except in accordance with this subsection.
(1) The
Department may agree to a settlement with any potentially liable person
only if the Department finds that the proposed settlement would lead
to a more expeditious cleanup of hazardous substances in compliance
with cleanup standards under section 4-16-10(b), subpart (4) and with
any remedial orders issued by the Department. Whenever practicable
and in the public interest the Department may expedite such a settlement
with a person whose contribution is insignificant in amount and toxicity.
(2) A
settlement agreement under this subsection shall be entered as a consent
decree issued by the Tribal Court.
(3) A
settlement agreement may contain a covenant not to sue only of a scope
commensurate with the settlement agreement in favor of any person
with whom the Department has settled under this section. Any covenant
not to sue shall contain a reopener clause which requires the Tribal
Court to amend the covenant not to sue if factors not known at the
time of entry of the settlement agreement are discovered and present
a previously unknown threat to human health or the environment.
(4) A
party who has resolved its liability to the Department under this
subsection shall not be liable for claims for contribution regarding
matters addressed in the settlement. The settlement does not discharge
any of the other liable parties but it reduces the total potential
liability of the others to the Department by the amount of the settlement.
(5)
If the Department has entered into a consent decree with an owner
or operator under this section, the Department shall not enforce this
Chapter against any owner or operator who is a successor in interest
to the settling party unless under the terms of the consent decree
the Department could enforce against the settling party, if:
(A)
The successor owner or operator is liable with respect to the facility
solely due to that persons ownership interest or operator status
acquired as a successor in interest to the owner or operator with
whom the Department has entered into a consent decree; and
(B)
The stay of enforcement under this subsection does not apply if
the consent decree was based on circumstances unique to the settling
party that do not exist with regard to the successor in interest,
such as financial hardship. Such unique circumstances shall be specified
in the consent decree.
(6) Any
person who is not subject to enforcement by the Department under section
4-16-4(d), subpart (5) is not liable for claims for contribution regarding
matters addressed in the settlement.
(e) In
addition to the settlement authority provided under section 4-16-4(d),
the Department may agree to a settlement with a person not currently
liable for remedial action at a facility who proposes to purchase, redevelop,
or reuse the facility, provided that:
(1) The
settlement will yield substantial new resources to facilitate cleanup;
(2) The
settlement will expedite remedial action consistent with this Chapter;
and
(3) Based
on available information, the Department determines that the redevelopment
or reuse of the facility is not likely to contribute to the existing
release or threatened release, interfere with remedial actions that
may be needed at the site, or increase health risks to persons at
or in the vicinity of the site.
(4) The
Department does not have adequate resources to participate in all
property transactions involving contaminated property. The primary
purpose of this section 4-16-4(e) is to promote the cleanup and reuse
of vacant or abandoned commercial or industrial contaminated property.
The Department may give priority to settlements that will provide
a substantial public benefit, including, but not limited to the reuse
of a vacant or abandoned manufacturing or industrial facility, or
the development of a facility by a Tribal entity to address an important
public purpose.
(f) Nothing
in this Chapter affects or modifies in any way any person's right to
seek or obtain relief under Tribal law, or other applicable laws, including
but not limited to damages for injury or loss resulting from a release
or threatened release of a hazardous substance. No settlement by the
Department or remedial action ordered by the Tribal Court or the Department
affects any person's right to obtain a remedy under Tribal law, or other
applicable laws.
4-16-5 Enforcement
(a) With
respect to any release, or threatened release, for which the Department
does not conduct or contract for conducting remedial action and for
which the Department believes remedial action is in the public interest,
the Department shall issue orders or agreed orders requiring potentially
liable persons to provide the remedial action. Any liable person who
refuses, without sufficient cause, to comply with an order or agreed
order of the Department is liable in an action brought by the Department
for:
(1) Up
to three times the amount of any costs incurred by the Department
as a result of the party's refusal to comply; and
(2) A
civil penalty of up to twenty-five thousand ($25,000) dollars for
each day the party refuses to comply. The treble damages and civil
penalty under this subsection apply to all recovery actions filed
on or after the date this Chapter is enacted and adopted by the Council.
(b) The
Department shall seek, by filing an action if necessary, to recover
the amounts spent by the Department for investigative and remedial actions
and orders, including amounts spent prior to the date this Chapter is
enacted and adopted by the Council.
(c) The
Department may request that the Office of Reservation Attorney bring
an action to secure such relief as is necessary to protect human health
and the environment under this Chapter.
(d) Civil
actions under this section and section 4-16-6 shall be brought in Tribal
Court.
4-16-6 Judicial Review
The Department's
investigative and remedial decisions under sections 4-16-3 and 4-16-5
and its decisions regarding liable persons under sections 4-16-12(t)
and 4-16-4 shall be reviewable exclusively in Tribal Court and only
at the following times:
(a) In
a cost recovery suit under section 4-16-5(b);
(b) In
a suit by the Department to enforce an order or an agreed order, or
seek a civil penalty under this Chapter; and
(c) In
a suit by the Department to compel investigative or remedial action.
The court shall uphold the Department's action unless they were arbitrary
and capricious.
4-16-7 Deposits to Hazardous Waste Account
(a) There
shall be established a hazardous waste account to be administered by
the Department.
(b) The
following moneys shall be deposited into the hazardous waste account:
(1) The
costs of remedial actions recovered under this Chapter;
(2) Penalties
collected or recovered under this Chapter; and
(3) Any
other money appropriated or transferred to the account by the Department.
Moneys in the account may be used only to carry out the purposes of
this Chapter including but not limited to the following activities:
(A)
The hazardous waste cleanup program required under this Chapter;
(B)
Matching funds required under any federal law;
(C)
Tribal programs for the safe reduction, recycling, or disposal of
hazardous wastes from households, small businesses, and agriculture;
(D)
Hazardous materials emergency response training; and
(E)
Water and environment health protection and monitoring programs;
(c) Moneys
in the hazardous waste account may be spent only after approval of a
budget by the Council. All earnings from investment of balances in the
account shall be credited to the account.
4-16-8 Private Right of Action-Remedial Action Costs
(a) A person
may bring a private right of action, including a claim for contribution
or for declaratory relief against any other person liable under section
4-16-4 for the recovery of remedial action costs, except that no private
right of action may be brought against the following:
(1) The
Tribe or instrumentalities of the Tribe (except where specifically
provided for by waiver of sovereign immunity); or
(2) As
provided in section 4-16-4(d), subparts (4) and (6).
(b) Recovery
shall be based on such equitable factors as the Tribal Court determines
are appropriate. Natural resource damages paid to the Tribe under this
Chapter may be recovered. Remedial action costs shall include reasonable
attorneys' fees and expenses. Recovery of remedial action costs shall
be limited to those remedial actions that, when evaluated as a whole,
are the substantial equivalent of a Department-conducted or Department-supervised
remedial action. Substantial equivalence shall be determined by the
Tribal Court with reference to this Chapter. An action under this section
may be brought after remedial action costs are incurred but must be
brought within three (3) years from the date remedial action confirms
cleanup standards are met. The prevailing party in such an action shall
recover its reasonable attorneys' fees and costs.
4-16-9 Remedial Actions-Exemption from Procedural Requirements
(a) A person
conducting a remedial action at a facility under a consent decree, order,
or agreed order, and the Department when it conducts a remedial action,
are exempt from the procedural requirements of all otherwise applicable
Tribal laws. The Department shall ensure compliance with the substantive
provisions of all otherwise applicable Tribal laws. The Department shall
establish procedures for ensuring that such remedial actions comply
with the substantive requirements adopted pursuant to such laws. The
procedures shall provide an opportunity for comment by the public and
by the Tribal agencies that would otherwise implement the laws referenced
in this section. Nothing in this section is intended to prohibit implementing
agencies from charging a fee to the person conducting the remedial action
to defray the costs of services rendered relating to the substantive
requirements for the remedial action.
(b) An
exemption in this section or in any other applicable Tribal law shall
not apply if the Department determines that the exemption would result
in loss of approval from a federal agency necessary for the Tribe to
administer any federal law, including the Federal Resource Conservation
and Recovery Act; the Federal Clean Water Act; the Federal Clean Air
Act; and the Federal Coastal Zone Management Act. Such a determination
by the Department shall not affect the applicability of the exemptions
to other statutes specified in this section.
4-16-10 Cleanup Standards
(a) Surface
water groundwater soil and sediment cleanup standards: The cleanup
standards enforced by the Department shall be those set forth in the
State of Washington "Model Toxics Control Act" or, where the Tribe has
adopted more stringent standards as set forth in Appendix A, Appendix
B, and Appendix C to this Chapter, the cleanup standards enforced by
the Department shall be those standards set forth in Appendix A, Appendix
B, and Appendix C which are incorporated in full herein by this reference.
(b) Application
of standards:
(1) Application
of standard methods A and B shall be at the sole discretion of the
Department.
(2)
When using Method C of the State of Washington Model Toxics Control
Act the determination of "commercial" or "industrial" land use status
shall be at the Department's discretion in consultation with the Tribal
Planning Department. Commercial or industrial land use status shall
not be granted in community wellhead protection zones as delineated
by the Department nor shall it be granted in cases where in the opinion
of the Department contamination from the site in question might be
captured by a water source used for human consumption including but
not limited to wells and springs.
(3) Background
level will be determined by the Department based upon data and tests
presented by the site owner operator.
(4) In
cases involving multiple chemicals with multiple health effects the
Department may use W.A.C. § 173-340 as guidelines to determine
aggregate cleanup levels that are protective of human health and the
environment.
(5) The
Department may consult with state and federal agencies, institutes
of higher learning, and other entities with expertise in toxic cleanup
and human or environmental toxicology in order to determine clean
up levels which are protective of human health and the environment.
(Amended
3/20/03, Resolution 2003-131)
(Certified 3/26/03)
4-16-11 Sovereign Immunity
Nothing
in this Chapter shall be construed to constitute a waiver of the sovereign
immunity of the Tribe, or of any instrumentality, agent, officer, or
employee of the Tribe.
4-16-12 Definitions
(a) "Attorney"
or "Reservation Attorney" means the attorney authorized by the Council
to carry out the duties as described in the Chapter.
(b) "Agreed
Order" means an order issued by the Department under this Chapter with
which the potentially liable person receiving the order agrees to comply.
(c) "Confederated
Tribes of the Colville Reservation" means the Tribal government.
(d) "Council"
means the Colville Business Council of the Confederated Tribes of the
Colville Reservation.
(e) "Department"
means the Environmental Trust Department of the Confederated Tribes
of the Colville Reservation.
(f) "Facility"
means:
(1)
Any building, structure, installation, equipment, pipe or pipeline
(including any pipe into a sewer or publicly owned treatment works),
well, pit, pond, lagoon, impoundment, ditch, landfill, storage container,
motor vehicle, rolling stock, vessel, or aircraft; or
(2) Any
site or area where a hazardous substance, other than a consumer product
in consumer use, has been deposited, stored, disposed of, or placed,
or otherwise come to be located.
(g) "Federal
Cleanup Law" means the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq.,
as amended by Public Law 99-499.
(h) "Foreclosure
and its equivalents" means purchase at a foreclosure sale, acquisition,
or assignment of title in lieu of foreclosure, termination of a lease,
or other repossession, acquisition of a right to title or possession,
an agreement in satisfaction of the obligation, or any other comparable
formal or informal manner, whether pursuant to law or under warranties,
covenants, conditions, representations, or promises from the borrower,
by which the holder acquires title to or possession of a facility securing
a loan or other obligation.
(i) "Hazardous
Substance" means:
(1) Any
"dangerous waste", defined as any discarded, useless, unwanted, or
abandoned substances disposed of in such quantity or concentration
as to pose a present or potential hazard to human health, wildlife,
or the environment because such wastes or constituents or combinations
of such wastes:
(A)
Have short-lived, toxic properties that may cause death, injury,
or illness or have mutagenic, teratogenic, or carcinogenic properties;
or
(B)
Are corrosive, explosive, flammable, or may generate pressure throughout
decomposition or other means.
(2) Any
"hazardous waste," defined as any waste which:
(A)
Will persist in a hazardous form for three (3) years or more at
a disposal site; and
(B)
While in its persistent form:
(i)
Presents a significant environmental hazard and may be concentrated
by living organisms through a food chain or may affect the genetic
makeup of people or wildlife; or
(ii) Is toxic to people or wildlife; or
(iii)
Adversely affects living organisms in soil, sediment, and water,
or air; or
(C)
If disposed of at a disposal site in such quantities or concentrations
as might present a hazard to people or the environment.
(3) Any
liquid, solid, gas, or sludge, including any material, substance,
product, commodity, or waste, regardless of quantity, that exhibits
any of the characteristics of dangerous waste or extremely hazardous
waste.
(4) Any
substance that, on March 1, 1989, is a hazardous substance under section
101(14) of the federal cleanup law, 42 U.S.C. § 9601(14).
(5) Petroleum
or petroleum products, and
(6) Any
substance or category of substances, including solid waste decomposition
products, determined by the director to present a threat to human
health or the environment if released into the environment.
(7) The
term hazardous substance does not include, any of the following when
contained in an underground storage tank from which there is not a
release: crude oil or any fraction thereof or petroleum, if the tank
is in compliance with all applicable federal and Tribal laws.
(j) "Hazardous
waste account" means an account of money set aside for uses described
in section 4-16-7.
(k) "Holder"
means a person who holds indicia of ownership primarily to protect a
security interest. A holder includes the initial holder such as the
loan originator, any subsequent holder such as a successor-in-interest
or subsequent purchaser of the security interest on the secondary market,
a guarantor of an obligation, surety, or any other person who holds
indicia of ownership primarily to protect a security interest, or a
receiver, court-appointed trustee, or other person who acts on behalf
or for the benefit of a holder. A holder can be a public or privately
owned financial institution, receiver, conservator; loan guarantor,
or other similar persons that loan money or guarantee repayment of a
loan. Holders typically are banks or savings and loan institutions but
may also include others such as insurance companies, pension funds,
or private individuals that engage in loaning of money or credit.
(l) "Independent
remedial actions" means remedial actions conducted without Department
oversight or approval, and not under an order, agreed order, or consent
decree.
(m) "Indicia
of ownership" means evidence of a security interest, evidence of an
interest in a security interest, or evidence of an interest in a facility
securing a loan or other obligation, including any legal or equitable
title to a facility acquired incident to foreclosure and its equivalents.
Evidence of such interests includes, mortgages, deeds of trust, sellers
interest in a real estate contract, hens, surety bonds, and guarantees
of obligations, title held pursuant to a lease financing transaction
in which the lessor does not select initially the leased facility, or
legal or equitable title obtained pursuant to foreclosure and their
equivalents. Evidence of such interests also includes assignments, pledges,
or other rights to or other forms of encumbrance against the facility
that are held primarily to protect a security interest.
(n) "Operating
a facility primarily to protect a security interest" occurs when all
of the following are met:
(1) Operating
the facility where the borrower has defaulted on the loan or otherwise
breached the security agreement;
(2) Operating
the facility to preserve the value of the facility as an ongoing business;
(3) The
operation is being done in anticipation of a sale, transfer, or assignment
of the facility; and
(4) The
operation is being done primarily to protect a security interest.
Operating a facility for longer than one year prior to foreclosure
or its equivalents shall be presumed to be operating the facility
for other than to protect a security interest.
(o) "Owner
or operator" means:
(1) Any
person with any ownership interest in the facility or who exercises
any control over the facility; or
(2) In
the case of an abandoned facility, any person who had owned, or operated,
or exercised control over the facility any time before its abandonment;
(3) The
term does not include:
(A)
The Tribe or any Tribal instrumentality which acquired ownership
or control involuntarily through bankruptcy, tax delinquency, abandonment,
or circumstances in which the Council involuntarily acquires title.
This exclusion does not apply to an instrumentality of the Tribe
which is subject to a waiver of sovereign immunity, which has caused
or contributed to the release or threatened release of a hazardous
substance from the facility;
(B)
A person who, without participating in the management of a facility,
holds indicia of ownership primarily to protect the person's security
interest in the facility. Holders after foreclosure and its equivalent
and holders who engage in any of the activities identified in section
4-16-12(p), sub-subparts (E) through (G) of this section shall not
lose this exemption provided the holder complies with all of the
following:
(i)
The holder properly maintains the environmental compliance measures
already in place at the facility;
(ii)
The holder complies with the reporting requirements in the rules
adopted under this Chapter;
(iii)
The holder complies with any order issued to the holder by the
Department to abate an imminent or substantial endangerment;
(iv)
The holder allows the Department or potentially liable persons
under an order, agreed order, or settlement agreement under this
Chapter access to the facility to conduct remedial actions and
does not impede the conduct of such remedial actions;
(v)
Any remedial actions conducted by the holder are in compliance
with any preexisting requirements identified by the Department,
or, if the Department has not identified such requirements for
the facility, the remedial actions are conducted consistent with
this Chapter; and
(vi)The
holder does not exacerbate an existing release. The exemption
in this section 4-16-12(o), subpart (3)(B) does not apply to holders
who cause or contribute to a new release or threatened release
or who are otherwise liable under section 4-16-4(a), subparts
(2), (3), (4), and (5); provided, however, that a holder shall
not lose this exemption if it establishes that any such new release
has been remediated according to the requirements of this Chapter
and that any hazardous substances remaining at the facility after
remediation of the new release are divisible from such new release;
(C)
A fiduciary in his, her, or its personal or individual capacity.
This exemption does not preclude a claim against the assets of the
estate or trust administered by the fiduciary or against a non-employee
agent or independent contractor retained by a fiduciary. This exemption
also does not apply to the extent that a person is liable under
this Chapter independently of the person's ownership as a fiduciary
or for actions taken in a fiduciary capacity which cause or contribute
to a new release or exacerbate an existing release of hazardous
substances. This exemption applies provided that, to the extent
of the fiduciary's powers granted by law or by the applicable governing
instrument granting fiduciary powers, the fiduciary complies with
all of the following:
(i)
The fiduciary properly maintains the environmental compliance
measures already in place at the facility;
(ii)
The fiduciary complies with the reporting requirements in the
rules adopted under this Chapter;
(iii)
The fiduciary complies with any order issued to the fiduciary
by the Department to abate an imminent or substantial endangerment;
(iv)
The fiduciary allows the Department or potentially liable persons
under an order, agreed order, or settlement agreement under this
Chapter access to the facility to conduct remedial actions and
does not impede the conduct of such remedial actions;
(v)
Any remedial actions conducted by the fiduciary are in compliance
with any preexisting requirements identified by the Department,
or, if the Department has not identified such requirements for
the facility, the remedial actions are conducted consistent with
the rules adopted under this Chapter; and
(vi)
The fiduciary does not exacerbate an existing release.
The
exemption in this section 4-16-12(o), subpart (3)(C) does not apply
to fiduciaries who cause or contribute to a new release or threatened
release or who are otherwise liable under section 4-12-4(a), subparts
(2), (3), (4), and (5); provided however, that a fiduciary shall
not lose this exemption if it establishes that any such new release
has been remediated according to the requirements of this Chapter
and that any hazardous substances remaining at the facility after
remediation of the new release are divisible from such new release.
The exemption in this section 4-16-12(o), subpart (3)(C) also does
not apply where the fiduciary's powers to comply with this section
4-16-12(o), subpart (3)(C) are limited by a governing instrument
created with the objective purpose of avoiding liability under this
Chapter or of avoiding compliance with this Chapter; or
(D)
Any person who has any ownership interest in, operates, or exercises
control over real property where a hazardous substance has come
to be located solely as a result of migration of the hazardous substance
to the real property through the ground water from a source off
the property, if:
(i)
The person can demonstrate that the hazardous substance has not
been used, placed, managed, or otherwise handled on the property
in a manner likely to cause or contribute to a release of the
hazardous substance that has migrated onto the property;
(ii)
The person has not caused or contributed to the release of the
hazardous substance;
(iii)
The person does not engage in activities that damage or interfere
with the operation of remedial actions installed on the person's
property or engage in activities that result in exposure of humans
or the environment to the contaminated ground water that has migrated
onto the property;
(iv)
If requested, the person allows the Department potentially liable
persons who are subject to an order, agreed order, or consent
decree, and the authorized employees, agents, or contractors of
each, access to the property to conduct remedial actions required
by the Department. The person may attempt to negotiate an access
agreement before allowing access; and
(v)
Legal withdrawal of groundwater does not disqualify a person from
the exemption in this section 4-16-12(o), subpart (3)(D).
(p) "Participation
in management" means exercising decision-making control over the borrower's
operation of the facility, environmental compliance, or assuming or
manifesting responsibility for the overall management of the enterprise
encompassing the day-to-day decision making of the enterprise.
(1) The
term does not include any of the following:
(A)
A holder with the mere capacity or ability to influence, or the
unexercised right to control facility operations;
(B)
A holder who conducts or requires a borrower to conduct an environmental
audit or an environmental site assessment at the facility for which
indicia of ownership is held;
(C)
A holder who requires a borrower to come into compliance with any
applicable laws or regulations at the facility for which indicia
of ownership is held;
(D)
A holder who requires a borrower to conduct remedial actions including
setting minimum requirements, but does not otherwise control or
manage the borrower's remedial actions or the scope of the borrower's
remedial actions except to prepare a facility for sale, transfer,
or assignment;
(E)
A holder who engages in workout or policing activities primarily
to protect the holder's security interest in the facility;
(F)
A holder who prepares a facility for sale, transfer, or assignment
or requires a borrower to prepare a facility for sale, transfer,
or assignment;
(G)
A holder who operates a facility primarily to protect a security
interest or requires a borrower to continue to operate, a facility
primarily to protect a security interest; and
(H)
A prospective holder who, as a condition of becoming a holder, requires
an owner or operator to conduct an environmental audit conduct an
environmental site assessment, come into compliance with any applicable
laws or regulations, or conduct remedial actions prior to holding
a security interest is not participating in the management of the
facility.
(q) "Person"
means an individual, firm, corporation, association, partnership, consortium,
joint venture, commercial entity, state government agency, unit of local
government, federal government agency of a Tribal instrumentality subject
to a waiver of sovereign immunity.
(r) "Policing
Activities" means actions the holder takes to insure that the borrower
complies with the terms of the loan or security interest or actions
the holder takes or requires the borrower to take to maintain the value
of the security. Policing activities include: Requiring the borrower
to conduct remedial actions at the facility during the term of the security
interest; requiring the borrower to comply or come into compliance with
applicable federal, state, and local environmental and other laws, regulations,
and permits during the term of the security interest; securing or exercising
authority to monitor or inspect the facility including on-site inspections,
or to monitor or inspect the borrower's business or financial condition
during the term of the security interest; or taking other actions necessary
to adequately police the loan or security interest such as requiring
a borrower to comply with any warranties, covenants, conditions, representations,
or promises from the borrower.
(s) "Potentially
Liable Person" means any person whom the Department finds, based on
credible evidence, to be liable under section 4-16-4. The Department
shall give notice to any such person and allow an opportunity for comment
before making the finding, unless an emergency requires otherwise.
(t) "Prepare
a Facility for Sale, Transfer, or Assignment" means to secure access
to the facility; perform routine maintenance on the facility; remove
inventory, equipment, or structures; properly maintain environmental
compliance measures already in place at the facility; conduct remedial
actions to clean up releases at the facility; or to perform other similar
activities intended to preserve the value of the facility where the
borrower has defaulted on the loan or otherwise breached the security
agreement or after foreclosure and its equivalents and in anticipation
of a pending sale, transfer, or assignment, primarily to protect the
holder's security interest in the facility. A holder can prepare a facility
for sale, transfer, or assignment for up to one (1) year prior to foreclosure
and its equivalents and still stay within the security interest exemption
in section 4-16-12 (o), subpart (2)(b).
(u) "Primarily
to Protect a Security Interest" means the indicia of ownership is held
primarily for the purpose of securing payment or performance of an obligation.
The term does not include indicia of ownership held primarily for investment
purposes nor indicia of ownership held primarily for purposes other
than as protection for a security interest. A holder may have other,
secondary reasons, for maintaining indicia of ownership, but the primary
reason must be for protection of a security interest. Holding indicia
of ownership after foreclosure or its equivalents for longer than five
(5) years shall be considered to be holding the indicia of ownership
for purposes other than primarily to protect a security interest. For
facilities that have been acquired through foreclosure or its equivalents
prior to the date this Chapter is enacted and adopted by the Council,
this five (5) year period shall begin as of the date of enactment and
adoption.
(v) "Public
Notice" means, adequate notice mailed to all persons who have made timely
request of the Department; published in the Tribal Tribune; and may
include an opportunity for interested persons to comment.
(w) "Reservation
Environment" means the environment within the exterior boundaries of
the Colville Indian Reservation and other lands held in trust status
by the U.S. Government for the Tribe or its members.
(x) "Reservation
Population" means persons residing within the Reservation Environment.
(y) "Release"
means any intentional or unintentional entry of any hazardous substance
into the environment, including but not limited to the abandonment or
disposal of containers of hazardous substances.
(z) "Remedy"
or "Remedial Action" means any action or expenditure consistent with
the purpose of this Chapter to identify, eliminate, clean up, or minimize
any threat of potential threat posed by hazardous substances to human
health or the environment including any investigative and monitoring
activities with respect to any release or threatened release of a hazardous
substance and any health assessments or health effects studies conducted
in order to determine the risk or potential risk to human health.
(aa) "Sediment"
means unconsolidated material eroded from parent rock, including soil
and/or any man-made unconsolidated solid material of a particulate nature,
which exists below the ordinary high water mark of any water body or
wetland.
(bb) "Tribe"
means the government of the Confederated Tribes of the Colville Reservation.
(cc) "Tribal
Instrumentality" means a unit of Tribal government or a Tribal organization
that is ultimately responsible to the Colville Business Council.
(dd) "Tribal
Court" means the Tribal Court of the Colville Confederated Tribes as
established in Amendment X of the Tribe's Articles and By-Laws.
(Amended
3/20/03, Resolution 2003-131)
(Certified 3/26/03)
4-16-13 Captions
As used
in this Chapter captions constitute no part of the law.
4-16-14 Construction
The provisions
of this Chapter are to be liberally construed to effectuate the policies
and purposes of this Chapter. In the event of conflict between the provisions
of this Chapter and any other act, the provisions of this Chapter shall
govern.
4-16-15 Effective Date
The effective
date of this Chapter shall be the date this Chapter is enacted and adopted
by the Council. This Chapter shall apply retroactively.
4-16-16 Severability
If any
provision of this Chapter or its application to any person or circumstance
is held invalid, the remainder of the Chapter or the application of
the provision to other persons or circumstances is not affected.
(Chapter 4-16 Adopted 12/9/99, Resolution 1999-828)
COLVILLE
TRIBAL HAZARDOUS SUBSTANCES CONTROL
APPENDIX A
Ground
water cleanup levels
The following
chart indicates the minimum cleanup levels for ground water, in terms
of amount of individual hazardous substance per unit volume, for the
hazardous substances listed. These cleanup levels shall remain in effect
until the Environmental Trust Department ("Department") amends them.
The Department may also establish more stringent cleanup levels for
a specific site, when, based on a site-specific evaluation, the Department
determines that such levels are necessary to protect human health and
the environment. For substances not listed below, refer to the state
of Washington's current publication on "Model Toxics Control Act Cleanup
Levels and Risk Calculations."
|
Hazardous
Substance
|
CAS
Number
|
Cleanup
Level
|
| Arsenic |
7440-38-2
|
5.0
ug/liter |
|
Benzene
|
71 -43-2 |
5.0 ug/liter |
|
Cadmium |
7440-43-9 |
5.0 ug/liter |
|
Chromium (Total) |
7440-47-3 |
50.0 ug/liter |
|
DDT |
50-29-3 |
0.1 ug/liter |
|
1.2 Dichloroethane |
107-06-2 |
5.0 ug/liter |
|
Ethylbenzene |
100-41-4 |
30.0 ug/liter |
|
Ethylene dibromide |
106-93-4 |
0.01 ug/liter |
|
Gross Alpha Particle Activity |
|
15.0 pCi/liter |
|
Gross Beta Particle Activity |
|
4.0 mrem/yr |
|
Lead |
7439-92-1 |
5.0 ug/liter |
|
Lindane |
58-89-9 |
0.2 ug/liter |
|
Methylene chloride |
75-09-2 |
5.0 ug/liter |
|
Mercury |
7439-97-6 |
2.0 ug/liter |
|
PAHs (carcinogenic) |
|
0.1 ug/liter |
|
PCB mixtures |
|
0.1 ug/liter |
|
Radium 226 and 228 |
|
5.0 pCi/liter |
|
Radium 226 |
|
3.0 pCi/liter |
| Toluene
|
108-88-3 |
40.0
ug/liter
|
| Total
Petroleum Hydrocarbons |
|
1000.0
ug/liter |
| 1,1,
1 Trichloroethane |
71-55-6 |
200.0
ug/liter |
| Trichloroethylene
|
79-01-5
|
5.0
ug/liter |
| Vinyl
chloride |
75-01-4 |
0.2
ug/liter |
| Xylenes |
1330-20-7
|
20.0
ug/liter |
COLVILLE
TRIBAL HAZARDOUS SUBSTANCES CONTROL ACT
APPENDIX
B
Soil
cleanup levels
The following
chart indicates the minimum cleanup levels for soil, in terms of amount
of individual hazardous substance per unit mass, for the hazardous substances
listed. These cleanup levels shall remain in effect until the Environmental
Trust Department ("Department") amends them. The Department may also
establish more stringent cleanup levels for a specific site, when, based
on a site-specific evaluation, the Department determines that such levels
are necessary to protect human health and the environment.
For substances
not listed below, refer to the state of Washington's current publication
on "Model Toxics Control Act Cleanup Levels and Risk Calculations."
|
Hazardous
Substance
|
CAS Number
|
Cleanup
Level
|
| Arsenic |
7440-38-2 |
20.0
mg/kg |
|
Benzene
|
71-43-2 |
0.5 mg/kg |
|
Cadmium |
7440-43-9 |
2.0 mg/kg |
|
Chromium |
7440-47-3 |
100.0 mg/kg |
|
DDT |
50-29-3 |
1.0 mg/kg |
|
Ethylbenzene |
100-41-4 |
20.0 mg/kg |
|
Ethylene dibromide |
106-93-4 |
0.001 mg/kg |
|
Lead |
7439-92-1 |
250 mg/kg |
|
Lindane |
58-89-9 |
1.0 mg/kg |
|
Methylene chloride |
75-09-2 |
0.5 mg/kg |
|
Mercury (inorganic) |
7439-97-6 |
1.0 mg/kg |
|
PAHs (carcinogenic) |
|
1.0 mg/kg |
|
PCB Mixtures |
|
1.0 mg/kg |
|
Tetrachloroethylene |
127-18-4 |
0.5 mg/kg |
|
Toluene |
108-88-3 |
40.0 mg/kg |
|
TPH (gasoline) |
|
100.0 mg/kg |
|
TPH (diesel) |
|
200.0 mg/kg |
|
TPH (other) |
|
200.0 mg/kg |
| 1,
1, 1, Trichloroethane |
71-55-6 |
20.0
mg/kg |
| Trichloroethylene |
79-01-5 |
0.5
mg/kg |
| Xylenes |
1330-20-7 |
20.0
mg/kg |
COLVILLE
TRIBAL HAZARDOUS SUBSTANCES CONTROL ACT
APPENDIX C
Sediment
cleanup levels for the Protection of Human Health and Sediment-Dwelling
Organisms
The following charts: Chart I and Chart II, indicate the minimum numerical
cleanup levels for contamination in sediments caused by the listed hazardous
substances. Chart I indicates the sediment cleanup levels for the protection
of human health. These cleanup levels are given in µg of contaminant/kg
of organic carbon. Chart II indicates the sediment cleanup levels for
the protection of sediment-dwelling organisms. The cleanup levels in
Chart II are given in the units shown in the chart. To the extent that
there are two sediment standards for the same compound the lower standard
shall control. Response actions must also comply with the following
narrative standards for sediments.
In the case of a substance for which there is no numerical standard
in Chart I, the following narrative standard shall apply:
Bioaccumulative
substances shall not occur in sediments, either singly or in combination
at concentrations that cause, or can reasonably be expected to cause,
injury to human health or biological resources including sediment-dwelling
organisms.
In the case of a substance for which there is no numerical standard
in Chart II, the following narrative standard shall apply:
Toxic
substances shall not occur in sediments, either singly or in combination,
at concentrations that cause, or can reasonably be expected to cause,
injury to human health or biological resources including sediment-dwelling
organisms.
These numerical sediment cleanup levels and narrative sediment cleanup
levels shall remain in effect until the Environmental Trust Department
("Department") amends them. The Department may also establish more stringent
cleanup levels for a specific site, when, based on a site-specific evaluation,
the Department determines that such levels are necessary to protect
human health and the environment.
Chart I. Sediment Cleanup Levels for the Protection of Human Health
| Chemicals
of Concern |
Sediment
Cleanup Levels (µg/kg OC) |
| Polycyclic
Aromatic Hydrocarbons |
|
| Benzo(a)pyrene |
21.6 |
| Dibenz[a,h]anthracene |
21.6 |
| Benz[a]anthracene |
21.6 |
| Chrysene |
13.8 |
| Benzo(b)fluoranthene |
21.6 |
| Benzo(k)fluoranthene |
21.6 |
| Ideno(a,2,3-cd)pyrene |
21.6 |
| Polychlorinated
Biphenyls |
|
| Aroclor
1016 |
1.54 |
| Aroclor
1242 |
0.533 |
| Aroclor
1248 |
0.533 |
| Aroclor
1254 |
0.533 |
| Aroclor
1260 |
0.533 |
| Total
PCBs |
0.533 |
| Pesticides |
|
| Aldrin |
0.0408 |
| Chlordane |
0.533 |
| Dieldrin |
0.0439 |
| p,p-DDD |
2.85 |
| p,p-DDE |
1.72 |
| p,p-DDT |
2.04 |
| Total
DDT* |
2.54 |
| Endosulfan
|
11300
|
| Endrin |
172 |
| Heptachlor |
0.408 |
| Heptachlor
epoxide |
0.204
|
| Alpha-hexachlorocyclohexane
(HCH) |
0.295 |
| Beta-HCH |
1.00 |
| Technical-HCH |
1.03
|
| Lindane
(gamma-HCH) |
1.44 |
| Mirex* |
17.8 |
| Toxaphene* |
5.08 |
| Dioxins
and Furans |
|
| 1,2,3,4,
6,7,8-Heptachlorodibenzo-p-dioxin |
3.76 |
| 1,2,3,4,6,7,8-Heptachlorodibenzofuran |
3.76 |
| 1,2,3,4,7,8,9-Heptachlorodibenzofuran
|
3.76 |
| 1,2,3,4,7,8-Hexachlorodibenzo-p-dioxin |
0.0144 |
| 1,2,3,4,7,8-Hexachlorodibenzofuran
|
0.0144 |
| 1,2,3,6,7,8-Hexachlorodibenzo-p-dioxin |
0.0144 |
| 1,2,3,6,7,8-Hexachlorodibenzofuran |
0.0144 |
| 1,2,3,7,8,9-Hexachlorodibenzo-p-dioxin
|
0.0144 |
| 1,2,3,7,8,9-Hexachlorodibenzofuran |
0.0144 |
| 1,2,3,7,8-Pentachlorodibenzo-p-dioxin |
0.00288 |
| 1,2,3,7,
8-Pentachlorodibenzofuran |
0.00815
|
| 2,3,4,6,7,8-Hexachlorodibenzofuran |
0.0144
|
| 2,3,4,7,8-Pentachlorodibenzofuran |
0.000972 |
| 2,3,7,8-Tetrachlorodibenzo-p-dioxin |
0.0000470 |
| 2,3,7,8-Tetrachlorodibenzofuran |
0.00408 |
| Octachlorodibenzodioxin |
37.6 |
| Octachlorodibenzofuran |
37.6 |
OC= organic
carbon; NS= no sediment quality standard is derived. Standards to be
developed as more data become available.
Chart II. Sediment Cleanup Levels for the Protection of Sediment-dwelling
Organisms
| Substance |
Sediment
Cleanup Levels |
| Metals
(in mg/kg DW) |
|
| Arsenic |
9.79 |
| Cadmium |
0.99 |
| Chromium |
43.4 |
| Copper |
31.6 |
| Lead |
35.8 |
| Mercury |
0.18 |
| Nickel |
22.7
|
| Zinc
|
121 |
| Polycyclic
Aromatic Hydrocarbons (µg/kg DW) |
|
| Anthracene |
57.2
|
| Fluorene |
77.4 |
| Naphthalene |
176
|
| Phenanthrene |
204 |
| Benz[a]anthracene |
108 |
| Benzo(a)pyrene |
150 |
| Chrysene |
166
|
| Fluoranthene |
423 |
| Pyrene |
195 |
| Total
PAHs |
1610 |
| Polychlorinated
Biphenyls (µg/kg DW) |
|
| Total
PCBs |
59.8
|
| Organochlorine
Pesticides (µg/kg DW) |
|
| Chlordane |
3.24 |
| Dieldrin |
1.90 |
| Sum
DDD |
4.88 |
| Sum
DDE |
3.16 |
| Sum
DDT |
4.16 |
| Total
DDTs |
5.28 |
| Endrin |
2.22 |
| Heptachlor
Epoxide |
2.47 |
| Lindane
(Gamma-BHC) |
2.37 |
DW=dry
weight
(Amended
3/20/03, Resolution 2003-131)
(Certified 3/26/03)
(March
2003 version of Chapter 4-16)
CHAPTER
4-17 PUBLIC FACILITIES FINANCING
4-17-1 Title;
Purpose of Chapter; Severability
(a) This Chapter
shall be known and may be cited as the Colville Confederated tribes Public
Facilities Financing Authority Chapter or as the Authority Act.
(b) Purpose: The purpose of this Chapter is to establish the Authority
as an independent Tribal agency and instrumentality under Tribal law and
clothed with Tribal immunities as a mechanism which may be utilized by
the Tribe with the express written approval of the Business Council to
finance needed and essential governmental and other projects deemed necessary
to promote, preserve and protect the health, security and general welfare
of the Tribe. In order to carry out such purpose, this Chapter further
creates and provides for the establishment of a Board of Directors (the
"Board") to govern the affairs of and to exercise the various powers conferred
upon the Authority and to provide authority for and to empower the Authority
to undertake, for and on behalf of and as a duly Constituted authority,
agency and instrumentality of the Tribe, the financing of the acquisition,
construction, equipping and improvement of public, essential governmental
purpose facilities and improvements and other facilities and improvements
for the Tribe, subject in all cases to final approval of each of said
activities reserved by the Business Council as expressly provided for
and directed by this Chapter.
(c) Severability: The provisions of this Chapter shall be severable
in accordance with the following:
(1)
Should an appropriate judicial body of competent jurisdiction declare
or adjudge any provision of this Chapter to be invalid, such declaration
or judgment shall not affect any other provisions of this Chapter not
specifically included in said declaration or judgment, it being the
expressed intent hereof that the several provisions of this Chapter
shall be and remain severable.
(2) Should an appropriate judicial body of competent jurisdiction declare
or adjudge invalid any application of any provision of this Chapter
to a particular property, building, structure or facility, such declaration
or judgment shall likewise not affect other property, buildings, structures
or facilities.
4-17-2 Creation of Authority
Pursuant
to the Tribe's sovereign powers and constitutional authority to create
subordinate organizations under Article V, Section A of the Tribe's
Constitution and By-laws and in order to promote, preserve, protect
and sustain the health, security and general welfare of the Confederated
Tribes and to provide for certain benefits to be conferred upon the
Confederated Tribes, the Business Council hereby authorizes and directs
the creation and establishment of, and there is hereby ordered created
and established, a subordinate authority, agency and instrumentality
of the Tribe for the purposes of:
(a) Providing
for the acquisition, construction, equipping, improvement, operation
and/or maintenance of essential governmental purpose and other facilities
and improvements both within and outside the boundaries of the Tribe's
reservation; and
(b) Providing
for the financing of such essential governmental purpose and other
facilities and improvements through the issuance of bonds, notes,
bond anticipation notes, revenue or tax anticipation notes, lease
revenue bonds, lease certificates of participation or other evidences
of indebtedness of the Authority, or through various other means of
raising and providing capital for the various undertakings of the
Authority and the Tribe, and where the Business Council shall have
provided written authorization approval (unless any such approval
is expressly waived by the Business Council) for each and every activity,
financing, project and service undertaken by the Authority pursuant
to the foregoing paragraphs (a) and (b).
(c) The
agency, authority and instrumentality so created and established is
hereby designated and shall have the corporate name "Colville Confederated
Tribes Public Facilities Financing Authority" (the "Authority" as
hereinabove defined) and shall at all times constitute a body corporate
and an agency and instrumentality of the Tribe. The Authority, the
Board, its agents and employees and its facilities, property, income
and revenues shall be protected by the Tribe's sovereign immunity
except to the extent that a limited waiver thereof may be expressly
authorized as provided for in this Chapter and as expressly approved
by the Business Council through adoption of written resolutions describing
and identifying the scope of each such waiver.
4-17-3 Board of Directors; Provisions Relating to Authority Governance
(a) Board
of Directors: There is hereby created a Board of Directors (the
"Board") of the Authority which shall be empowered to act as the governing
body of the Authority for the purpose of directing and governing the
affairs and activities of the Authority and exercising the powers conferred
upon the Authority by this Chapter. The Business Council shall appoint
the members of the Board.
(b) Appointment;
Composition of Board: The Board shall be composed of five (5) members
who shall be appointed and confirmed by the Business Council. Each member
of the Board shall be an enrolled member of the Tribe in good standing.
Three members of the Board shall be appointed from the members serving
on the Business Council. The Executive Director of the Tribe and President
and Chief Executive Officer of CTEC shall each also be appointed as
the remaining two members of the Board.
(c) Terms
of Office of Board Members: The initial term of the Board members,
appointed from the membership of the Business Council shall be concurrent
and coterminous with that Board member's term on the Business Council.
The initial Board members so appointed from the Business Council shall
be appointed in such manner so that the term of office of such Board
members expire on different dates and such staggering of the terms of
office of the Business Council members appointed to the Board shall
be maintained for Business Council members subsequently appointed to
the Board. In any event, each such member shall hold office for a term
of not to exceed two (2) years or until their successors have been appointed,
confirmed and qualified; provided, however, that their terms of office
on the Board shall not extend beyond their respective terms of office
as members of the Business Council. Any person appointed to the Board
may be re-appointed for successive terms on the Board provided that
each person so reappointed shall continue to meet the qualifications
and requirements for members of the Board. The Executive Director and
the President and Chief Executive Officer of CTEC shall be appointed
to serve maximum three (3) year terms on the Board and shall be reappointed
to successive terms on the Board during the period each holds the office
of Executive Director and Chief Executive Officer, respectively.
(d) Officers:
There shall be elected from among members of the Board a Chairperson,
Vice-Chairperson, Secretary and Treasurer. Within ten (10) days after
the appointment of the initial members of the Board, there shall be an
organizational meeting of the Board at which the members of the Board
shall elect the Chairperson, Vice Chairperson, Secretary and Treasurer.
Annually thereafter at the first meeting of the Board in each year, the
Board shall elect the officers of the Authority from among its members.
(e) Records
of Meetings: The Secretary shall keep or cause to be kept a complete
and accurate record of all meetings, copies of which shall be furnished
to the Board and to the Business Council.
(f) Quorum
and Voting: At any special or regular meeting of the Board, three
(3) members of the Board shall constitute a quorum. Any action taken
by the Board must be approved by a simple majority of those present
at a meeting and constituting a quorum for any such action to pass.
(g) Vacancies:
If any member of the Board shall die, resign or no longer be qualified
to be a member of the Board under the terms of this Chapter, or if a
member is removed pursuant to applicable removal procedures established
by the Board, as provided in the following section
(h) below, the Business Council shall declare the office vacant and
appoint a successor (meeting the qualifications and requirements established
by this Chapter for that Board vacancy) to fill such vacancy within
thirty (30) days to serve the unexpired portion of the term of the member
who is no longer qualified to serve on the Board.
(h) Removal
Procedure: A member of the Board may be removed from office by a
majority vote of the members of the Board or by a majority vote of the
Business Council if the Board or the Business Council, as appropriate,
shall determine that such member is guilty of improper conduct or gross
neglect of duty; provided that such member shall first be given full
opportunity to reply to any and all accusations at a properly convened
hearing thereon, and provided further, that the accused is given a written
statement of the grounds for such removal against him at least ten (10)
days before the date set for such hearing. Each decision to remove a
Board member under and pursuant to the provisions of this section shall
be final and shall not be subject to review or appeal to any court or
forum.
(i) Meetings:
The Board shall hold meetings when the business of the Board so requires,
but in any event the Board shall meet regularly in regular session at
least twice each year at meetings convened during the months of January
and July of each year. Special meetings may be called by the Chairperson
of the Board, or upon request in writing of two members of the Board
or upon the written request and direction of the Business Council. If
the Chairperson fails to call a special meeting within ten (10) days
after receipt of a written request for a special meeting from any two
members, any two members of the Board may call and convene such special
meeting by written notice to all members of the Board stating the date,
time and place for such meeting of the Board. If the Chairperson fails
to call a special meeting within ten (10) days after receipt of a written
request for a special meeting from the Business Council, then the Business
Council may call and direct that a special meeting of the Board be convened
by written notice to the members of the Board stating the date, time
and place for such meeting of the Board.
(j) Execution
of Documents: The Chairperson, Vice Chairperson, Secretary and Treasurer
of the Board may execute such documents, instruments or other papers
as the Board shall authorize for execution on behalf of the Board. All
such authorizations shall be reflected in the records of meetings of
the Board kept by the Secretary.
(k) Board
Voting: Each member of the Board, including the Chairperson, shall
be entitled to one vote on each matter properly coming before the Board.
(l) Responsibilities:
The Board shall be responsible for providing for management and overall
supervision of and for the Authority, for the exercise of its powers
and for the financing of the projects undertaken by the Authority. It
shall be authorized to enter into and execute contracts and other agreements
and do all things necessary to carry out the powers vested in the Authority
by this Chapter and to exercise the responsibilities of the Authority
hereunder or specifically delegated to the Board and the Authority under
this Chapter, but subject at all times to the written approval of the
Business Council and to the express provisions of this Chapter relating
thereto.
(m)
Indemnification: The Authority shall indemnify and save the members
of the Board, and its officers, directors and employees, harmless against
any loss, expense and liability which it may incur arising out of or
in the exercise and performance of its powers and duties herein, including
the costs and expenses of defending against any claim of liability,
but excluding any and all losses, expenses and liabilities which are
due to the willful misconduct default of the members of the Board, its
officers, directors or employees.
(n) Reports
to Business Council: The Board shall provide written reports summarizing
its operations and activities to the Business Council quarterly and
at such other times as requested in writing by the Business Council.
The Chairperson and Secretary of the Board shall be available for consultations
with and verbal reports to the Business Council as shall be requested
from time to time by the Business Council.
4-17-4 Authority’s Power
The Authority
shall be authorized to exercise the powers enumerated in and conferred
upon the Authority by the provisions of this Chapter, including the
powers set forth in this section; provided, however, that the undertaking
of any action by the Authority and the exercise by the Authority of
any power conferred upon the Authority by this section or by any other
provision of this Chapter shall not be undertaken or exercised without
the express prior authorization and approval of the Business Council
to be evidenced and set forth in each instance in a properly adopted
and effective resolution of the Business Council.
(a) Intergovernmental
Agreements: The Authority shall have the power to make agreements
with the Tribe, the Business Council, state and local governments
and administrative entities and corporations, partnerships, individuals
and business entities of every kind and nature in order to carry out
the powers and purposes and intent of this Chapter.
(b) Right
of Entry: The Authority shall have the power to enter upon land
in connection with the financing of any project by the Authority or
the Board under this Chapter without liability therefor.
(c) Construction
Activities: The Authority shall have the power to undertake the
financing, acquisition and construction of any facilities, improvements
or projects as shall approved by the Authority and the Business Council,
including the acquisition of easements and rights-of-way and the laying
out of utilities for public use in and through such easements and
rights-of way within and without the boundaries of the reservation
if required for the financing of a project by the Authority.
(d) Acquisition
of Property: The Authority shall have the power to finance, refinance,
acquire or confer, own (but only if required for financing a project
as described in section 4-17-5(g) of this Chapter), lease, encumber,
assign, or alienate any property of every kind and nature (including
the right of entry upon property owned by the Tribe or Authority)
in connection with the financing of any project by the Authority or
the Board hereunder.
(e) Financing
Powers:
(1)
The Authority shall have the power, in its own name or in the name
of the Tribe, to issue bonds, notes, bond anticipation notes, revenue
or tax anticipation notes, lease revenue bonds, lease certificates
of participation, limited tax bonds, project financing revenue bonds
or other types and evidences of indebtedness for and on behalf of
the Tribe, to finance, refinance, acquire, construct, equip, improve,
operate and/or maintain governmental purpose facilities and other
facilities and to acquire and lease property or interests therein
and required in connection therewith.
(2)
The Authority may pledge to the repayment of any such borrowing
or indebtedness any or all of the revenues of the Authority or of
any project or facilities financed by the Authority. The Authority
shall not have any power to pledge or encumber any other revenues,
income, property or assets of the Tribe, or any other agency, organization
or instrumentality (other than the Authority) of the Tribe to repayment
of such borrowing unless the Business Council shall determine and
approve by resolution that it is in the best interest of the Tribe
to pledge to the payment of any such borrowing certain specific
revenues, income or assets of the Tribe, or of another agency, organization
or instrumentality of the Tribe, as expressly authorized and approved
by the Business Council. No borrowing undertaken by the Authority
shall be payable from, nor constitute a charge or lien upon, any
funds other than the revenues specifically pledged to the payment
thereof, nor shall the Tribe be liable thereon other than to the
extent specifically provided in this paragraph, in express resolutions
of the Business Council related to any such borrowing and in the
financing documents required for any borrowing, and such limitation
shall be expressly stated in such financing documents.
(3)
Upon prior approval by the Business Council, to be evidenced by
resolutions passed by the Business Council, the Authority may also
enter into such other arrangements for raising capital, for any
project, facilities or improvements undertaken by the Authority
as the Board shall deem necessary or in the best interest of the
Authority in carrying out the financing of any such project, facilities
or improvements.
(f) Sovereign
Immunity Provisions: In connection with any borrowing which is
empowered by this Chapter, the Authority and the Board may (but solely
with express written authorization and approval from the Business
Council, to be evidenced by resolution adopted by the Business Council)
undertake and deliver a limited waiver of sovereign immunity as required
for enforcement of the financing documents entered into by the Authority,
including its consent to suit therein, should such consent be required
to undertake, complete and enforce the terms of such borrowing, and
may consent to the jurisdiction of any court which has lawful jurisdiction
of any such action; provided that the Authority and the Board are
without power to waive the sovereign immunity of the Tribe, to consent
to the jurisdiction of any court over the Tribe, or to the levy of
any judgment, lien or attachment upon any property, asset or income
of the Authority, the Tribe or any other organization or instrumentality
of the Tribe (other than the Authority) except with respect to the
Authority's financing documents and those revenues and property specifically
authorized to be pledged to the repayment of and as security for any
borrowings undertaken through such financing documents, as provided
in section 4-17-4(e) of this Chapter. The Authority may only deliver
a limited waiver of sovereign immunity in the express form approved
by the Business Council and under no circumstances shall the Authority
be authorized or empowered to execute or deliver a general waiver
of sovereign immunity.
(g) Rates,
Interest Charges and Fees: The Authority shall have the power
and authority to establish rates, charges and fees and tariffs for
any financing or project undertaken by the Authority or for services
provided by any property, facilities, improvements or equipment financed
by the Authority pursuant to the powers conferred upon it by this
Chapter.
(h) Governmental
and Other Facilities: The Authority shall have the power to loan
to the Tribe or any organization or instrumentality of the Tribe the
proceeds of bonds, notes or other obligations issued pursuant to section
4-17-4(e) and to purchase, acquire, finance, and/or to provide for
the lease financing, installment purchase and other arrangements with
the Tribe (or any of its organizations, agencies or instrumentalities),
of such facilities, projects, improvements and equipment as shall
constitute and be used by or on behalf of the Tribe as governmental
purpose facilities and/or for other facilities and purposes and as
shall have been approved by the Business Council.
4-17-5 Financial Accounting and Audits
The Business
Council hereby authorizes and directs that accounting services shall
be provided to the Authority by the Tribe for a fee. One or more special
funds and accounts shall be established for the Authority. Each fund
and account specified for the Authority shall be kept separate and distinct
from and shall not be commingled with any other funds and accounts of
the Tribe. Such financial records of the Authority as may be relevant
and not privileged shall be open to any entity that provides, lends
or grants money to the Authority or to the Tribe for the benefit of
the Authority, provided that the entity has just cause to inspect such
records, that no less than five (5) business days' notice is given for
such examination and that such examination shall be conducted during
normal business hours of the Authority and the Tribe. Said records shall
also be open for review and examination by members of the Tribe under
such conditions as shall be established and approved by the Business
Council and the Board. The financial records of the Authority shall
at all times be available to the Business Council for its review and
examination upon request of the Business Council.
(a) Records
and Accounts: Accounting records of the Authority shall be kept
and maintained by the Treasurer. The records and accounts shall 1
also be maintained as part of the accounting records of the Tribe
and the Business Council at the designated administrative offices
of the Tribe.
1
(note: "shall be also be" in original)
(b) Audits
and Reports: The accounts of the Authority shall be audited annually
at the close of each fiscal year, at the expense of the Authority.
Annual and periodic reports shall be submitted by the Board to the
Business Council upon completion.
(c) Insurance:
Insurance shall be maintained on all property in which the Authority
has an insurable interest and shall be in the amounts and be of the
type of coverage specified by the Authority and the Business Council.
(d) Fiscal
Year: The fiscal year of the Authority shall be the same as the
fiscal year of the Tribe.
(e) Leasing
or Management of Lands: The Authority may negotiate leases with
individual owners of lands for leasing privileges under mutually agreeable
terms and if necessary in connection with any project undertaken by
the Authority. Final action and authority to execute leases on behalf
of the Authority must be approved by both the Board and the Business
Council by resolution duly passed and adopted by each such governing
body, respectively, before becoming effective.
(f) Entry
to Authority Property: The Business Council and the administration
of the Tribe shall be permitted to enter upon all projects and properties
of the Authority for the purpose of inspection, observation, measurement,
sampling and testing in accordance with the provisions of this resolution
and in accordance with the laws of the Tribe and upon reasonable notice
thereof to the Authority. No notice shall be required in case of an
emergency.
(g) Title
to Property: All property acquired with respect to any project,
facilities or improvements undertaken and financed by the Authority
pursuant to the powers conferred upon it by this Chapter, and all
plans, specifications, diagrams, papers, books and records prepared
and completed in connection therewith, and all buildings, machinery,
fixtures, improvements and equipment pertaining thereto, shall be
the property of the Tribe unless the terms of any financing undertaken
by the Authority and approved by resolution of the Business Council
require and direct that ownership of any of such items and/or property
be vested in the Authority until such financing is repaid and discharged.
Ownership of all property conveyed to and vested in the Authority
shall be granted, conveyed and transferred to the Authority using
the following language for such conveyance and vesting of ownership
in the Authority:
(1)
The Colville Confederated Tribes Public Facilities Financing Authority,
for and on behalf of and as an agency and instrumentality of The
Confederated Tribes of the Colville Reservation. Title to any facilities
or project held by the Authority for the purpose of any financing
undertaken by the Authority shall immediately be conveyed and vested
in the Tribe upon payment and discharge of such financing.
4-17-6 Amendments; Effective Date
This Chapter
may be amended by resolution or Chapter adopted and approved by the
Business Council.
4-17-7 Duration of Authority; Termination
The Authority
shall continue in existence and have perpetual duration unless earlier
terminated by resolution or Chapter duly passed and adopted by the Business
Council; provided that this Chapter shall continue to be in effect at
all times and shall remain in full force and effect and shall not terminate,
and the existence of the Authority shall continue in effect during the
entire period and for the entire term that, any bonds, notes, certificates,
loans, obligations or other indebtedness of the Authority shall remain
outstanding and unpaid or while any indebtedness of any party owed to
the Authority shall remain outstanding and unpaid, or while the Authority
s hall continue to own any interest in any property, whether real or
personal.
4-17-8 Disposition of Assets
Upon termination
and dissolution of the Authority and after payment of all expenses,
liabilities, bonds, notes, certificates, indebtedness and all other
outstanding obligations of the Authority, the ownership of and to all
property then owned by the Authority shall be conveyed to, become vested
in and shall be and constitute the sole property of the Tribe. Upon
termination of the Authority, any surplus money then on hand with the
Authority and not required for the payment and discharge of its obligations
shall be immediately deemed to be the property of and shall be transferred
to and deposited to such accounts of the Tribe as the Business Council
shall direct.
4-17-9 Obligations of the Authority
None of
the debts, liabilities or obligations of the Authority shall be the
debts, liabilities or obligations of the Tribe unless specifically assumed
as such in a particular instance or case by resolution or other authorizing
legislation of the Business Council of the Tribe providing for express
approval thereof.
4-17-10 Effective Date
This Chapter
shall be in full force and effect immediately upon its passage and approval
by the Business Council.
(Chapter
4-17 Adopted 2/5/98, Resolution 1998-49)
(Certified
2/24/2000)
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