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Oglala Sioux Tribe: Law and Order Code

Received: 2002.

Oglala Sioux Tribe Water Quality Management Code

Prepared by the Oglala Sioux Tribe Environmental Health Technical Team, Environmental Protection Program

 

WATER QUALITY MANAGEMENT CODE

TABLE OF CONTENTS

SECTION PAGE NO.

CHAPTER 1
General Provisions

Part 1
Policies and Procedures

1-1-101. Policy and Purpose 1
1-1-102. Definitions 2
1-1-103. Public and Confidential Records 7
1-1-104. Cooperation and Agreements with Agencies and Private Organizations 8
1-1-105. Severability 9
1-1-106. Effective Date 9


Part 2
Pollution Control Revolving Fund (Reserved)

Chapter 2
Administration

Part 1
Organization

1-2-101. Environmental Protection Program 10
1-2-102. Powers of the Environmental Protection Program 10
1-2-103. Duties of the Environmental Protection Program 11
1-2-104. Emergencies 14

Part 2
Classification and Standards

1-2-201. Classification of Waters Within the Jurisdiction of the Tribe 15
1-2-202. Reconsideration and Revision of Classification 16
1-2-203. Scope of Water Quality Standards 16
1-2-204. Interim Standards 17
1-2-205. Discharge of Toxic Pollutants Prohibited 17
1-2-206. Antidegradation Policy 17
1-2-207. Standards to Be Based on Measurable Characteristics 18
1-2-208. Consideration in Recommending Water Quality Standards 19
1-2-209. Recommendations for Standards Based on Statistical Methods 20
1-2-210. Review and Revisions of Standards 20

Part 3
Regulations Controlling Discharges

1-2-301. Scope of Control Regulations 21
1-2-302. Consideration in Recommending Rules to Control Discharges 21
1-2-303. Rules for Wasteload Allocations and Total Maximum Daily Loads 22


Part 4
Assessment Reports, Continuous Planning
Process and Management Plans

1-2-401. Assessment Reports 22
1-2-402. Continuous Planning Process 25
1-2-403. Comprehensive Water Quality Management Plan 26

 

Chapter 3
Permitting, Certification, Penalties
and Remedies

Part 1
Permitting and Certification

1-3-101. Permits Required for Discharge of Pollutants 28
1-3-102. Administration of Permits 28
1-2-103. Relationship to Federal NPDES Permits 28
1-3-104. Applications for Permits 28
1-3-105. Incomplete Applications 29
1-3-106. Review, Notice and Comment on Applications for Discharges by New Sources 30
1-3-107. Review, Notice and Comment On Applications for Existing Sources 30
1-3-108. Time for Issuance or Denial of Permits 31
1-3-109. Permit Rules and Conditions 31
1-3-110. Permit Issuance 33
1-3-111. Runoff and Return Flows 33
1-3-112. Limitations on Permit Issuance 34
1-3-113. Procedures upon Modification or Denial of Permit 35
1-3-114. Variances 35
1-3-115. Permit Fees 36
1-3-116. Underground Fuel Storage (Reserved) 36
1-3-117. Certification 37


Part 2
Prohibition, Civil Penalties, and Remedies

1-3-201. Prohibited Activity 37
1-3-202. Notification of Unpermitted Discharges -- Penalty 38
1-3-203. Spill Contingency Plan 38
1-3-204. Cleanup Orders 39
1-3-205. Action by Other Parties 39
1-3-206. Notice of Alleged Violation 40
1-3-207. Hearing Procedures for Alleged Violations 40
1-3-208. Suspension or Revocation of Permit 41
1-3-209. Cease and Desist Orders 41
1-3-210. Compliance Orders 41
1-3-211. Injunctions Authorized 42
1-3-212. Civil Penalties Remedies Cumulative 42
1-3-213. Costs and Expenses Recovery by the Environmental Protection Program 43
1-3-214. Intervention 43


Part 3
Appeals and Judicial Review

1-3-301 Administrative Appeals and Judicial Review 43
1-3-302 Authority to Seek Enforcement 45

 


ORDINANCE OF THE TRIBAL COUNCIL OF THE OGLALA SIOUX TRIBE

OF THE PINE RIDGE INDIAN RESERVATION


BE IT ENACTED BY THE TRIBAL COUNCIL OF THE OGLALA SIOUX TRIBE OF THE PINE RIDGE INDIAN RESERVATION
that the chemical, physical, and biological quality of the water resources within the jurisdiction of the Oglala Sioux Tribe be protected, restored, and maintained as provided in the following Ordinance, referred to as the Oglala Sioux Tribal Water Quality Management Code.


WATER QUALITY MANAGEMENT


Chapter 1

General Provisions


Part 1

Policies and Procedures



1-1-101. Policy and Purpose. It is the policy of the Tribal Council and the purpose of this Code to:

(1) restore and maintain the chemical, physical, and biological integrity of the waters within the jurisdiction of the Oglala Sioux Tribe to preserve and enhance the environment within the jurisdiction of the Tribe as the permanent homeland of the people of the Oglala Sioux Tribe and to implement the rights reserved by the Tribes and guaranteed to them by the United States in the Treaty of Fort Laramie with the Sioux nation, September 17, 1851 and subsequent treaties;

(2) conserve waters within the jurisdiction of the Tribe by protecting, maintaining, and improving the quality of water for public water supplies, wildlife, fish and aquatic life, recreation, agriculture, industry, cultural and other beneficial uses;

(3) prohibit the discharge of toxic pollutants and eliminate the discharge of all unpermitted pollutants into waters within the jurisdiction of the Tribe;

(4) achieve a quality of all surface waters within the jurisdiction of the Tribe adequate to provide for the protection and propagation of indigenous populations of fish and wildlife and to provide for water-based recreation;

(5) provide for public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, or plan established under this Code;

(6) cooperate with and, where appropriate, enter into agreements with federal, state, regional, and local agencies, private organizations, and individuals to improve or restore the quality of waters within the tribe's jurisdiction; and

(7) provide a comprehensive program for the prevention, abatement, and control of water pollution for waters within the tribe's jurisdiction.


1-1-102. Definitions. Unless the context otherwise requires, the following definitions will apply throughout this Code:

(1) "Agency" means any executive department, division, program, bureau, or other unit of the federal, state, or Tribal government, or political subdivision of the state, or a regional water quality entity, which has been granted lawful authority to enter into contracts or agreements and which has been assigned the responsibility or is subject to legal obligations to restore, maintain, or protect water quality in the rivers and streams, or their tributaries, of waters within the jurisdiction of the Tribe.

(2) "Best management practices" ("BMP's") means schedules of activities, operational practices, maintenance procedures, and other management practices adopted by rule or incorporated by an agency as a condition of a permit or contract to prevent or reduce the pollution of waters within the jurisdiction of the Tribe. BMP's may also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(3) "Classification" means the classification of the surface waters of the Tribes by the designation of the use for those waters.

(4) "Concentrated animal feeding operation" means a confined commercial facility containing livestock or birds fed by means other than grazing, and which facility is a point source subject to effluent standards and limitations as provided by rule.

(5) "Concentrated aquatic animal production facility" means a fish hatchery, fish farm, or other facility which may be designated by rule as a point source upon determining that it is a significant contributor of pollution to Waters within the jurisdiction of the Tribe.

(6) "Contamination" means impairment of the quality of Waters within the jurisdiction of the Tribe by pollutants, creating a hazard to human health.

(7) "Construction" means any placement, assembly, or installation of facilities or equipment (including contractual obligations to purchase such facilities or equipment) at the premises where such equipment will be used, including preparation work at the site.

(8) "Council" or "Tribal Council" means Tribal Council of the Oglala Sioux Tribe.

(9) "Day" or "Days" means calendar days, unless specifically provided otherwise, and, where any deadline falls on a day that is determined by the Oglala Sioux Tribe to be an official non-working day, the deadline shall fall on the first official working day following.

(10) "Discharge of a pollutant" or "discharge" means any addition of a pollutant or combination of pollutants to Waters within the jurisdiction of the Tribe from any point source.

(11) "Disposal system" means a system for disposing of sewage, industrial wastes, or other pollutants and includes sewage systems and treatment works.

(12) "Effluent limitation" means any restriction or prohibition established under this Code or by the United States Environmental Protection Agency on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into Waters within the jurisdiction of the Tribe, including, but not limited to, standards of performance for new sources, and schedules of compliance.

(13) "Federal Water Pollution Control Act" means the federal law codified at 33 USCA §1251 et seq, also known as the federal Clean Water Act.

(14) "Industrial waste" means any waste substance from processes used by business or industry or from the development of any natural resource, together with any sewage that may be present.

(15) "Irrigation return flow" means tailwater, drainage water, or surfaced groundwater flow from irrigated land.

(16) "New source" means any source the construction of which is commenced after the publication of proposed Tribal rules establishing an applicable standard of performance, or any source which is defined as a new source by federal law.

(17) "Nonpoint source" means any activity of man which contributes or may contribute pollutants to Waters within the jurisdiction of the Tribe by drainage, diffuse flows, erosion, diversion, or pumping and which is not a point source. Nonpoint sources include, without limitation: agricultural, silvicultural, and timber harvesting activities, including runoff from fields and crop and forest lands; mining activities, including runoff and siltation from new, currently operating, and abandoned surface and underground mines; all construction activity, including runoff from the facilities resulting from such construction; the disposal of pollutants in wells or in subsurface excavations; salt water intrusion resulting from reductions of fresh water flow from any cause, including extraction of groundwater, irrigation, obstruction, and diversion; and changes in the movement, flow, or circulation of any surface waters or groundwaters, including changes caused by the construction of dams, levees, channels, or flow diversion facilities.

(18) "Environmental Protection Program" or "OST-EPP" means the Oglala Sioux Tribe Office of Environmental Protection.

(19) "Owner or operator" means any person who owns, leases, operates, controls, or supervises

(a) a source, or

(b) real property, the operation, or maintenance of which is subject to the application of best management practices.

(20) "Permit" means a permit issued pursuant to this Code.

(21) "Person" means an individual, association, partnership, corporation, commercial or professional establishment, firm, agency, or any agent or employee thereof.

(22) "Point source" means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, dam gate or spillway, well, discrete fissure, container, rolling stock, or vessel or other -floating craft from which pollutants are or may be discharged.

(23) "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.

(24) "Schedule of compliance" means a schedule of remedial measures and times including an enforceable sequence of actions or operations leading to compliance with any Tribal or federal regulation of discharges by point sources or pollution by nonpoint sources.

(25) "Sewage" means water-carried waste products from residences, public buildings, institutions, commercial establishments, or other buildings, including discharge from human beings or animals, together with groundwater and surface water present.

(26) "Sewage system" means a device for collecting or conducting sewage, industrial wastes, or other wastes to an ultimate disposal point.

(27) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(28) "Standard of performance" means a standard adopted by rule for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.

(29) "Toxic pollutants" means a pollutant or combination of pollutants including disease causing agents.

(30) "Treatment works" means works, lagoons, or facilities installed for treating or holding sewage, industrial wastes, or other wastes.

(31) "Tribal Court" means the courts of the Oglala Sioux Tribe.

(32) "USEPA" means the United States Environmental Protection Agency through any of its agencies either in the national office or in the Region VIII office in Denver, Colorado.

(33) "Water quality standard" means any standard adopted pursuant to Section 1-2-204.

(34) "Waters Within the Jurisdiction of the Tribe" means all the waters, surface or subsurface, arising upon, occurring within or flowing through the lands which are within the jurisdiction of the Oglala Sioux Tribe including, without limitation, geothermal waters, irrigation return flows, diffuse surface water, and the waters of wetlands.


1-1-103. Public and Confidential Records.

(1) Except as otherwise provided in subsections (2) and (3) of this Section, information acquired by the Environmental Protection Program under this Code will be subject to the information and privacy provisions of this Code.

(2)

(a) Any information concerning sources of pollution, costs or methods of pollution prevention or control, and data describing the physical, chemical, biological, radiological, or thermal properties of waters within the jurisdiction of the Tribe, including wastewaters, discharges, and runoff, which is furnished to the Environmental Protection Program or obtained by it is a matter of public record and is open to inspection and copying, except as provided in subsection (3) of this section.

(b) The Environmental Protection Program may use any information in compiling or publishing analyses or summaries relating to water pollution if such analyses or summaries do not identify any owner or operator of a source of pollution or reveal any information which is otherwise made confidential by subsection (3) of this section.

(3) Any information unique to the owner or operator of a source of pollution which would, if disclosed, reveal methods or processes entitled to protection as trade secrets shall be maintained as confidential if so determined by the Tribal Court. The owner or operator shall file a declaratory judgment action to establish the existence of a trade secret if he wishes such information to enjoy confidential status. The Environmental Protection Program shall be served in any such action and may intervene as a party therein.

(4) Nothing herein shall be construed to waive any rights of the Tribe to any confidentiality related to cultural or historical sites.


1-1-104. Cooperation and Agreement with Agencies and Private Organizations.

(1) In planning and implementing plans for the prevention or reduction of water pollution, the Environmental Protection Program may exchange information and cooperate with all agencies with responsibilities affecting water quality upstream and downstream of waters within the jurisdiction of the Tribe.

(2) The Environmental Protection Program may participate in the activities of any intergovernmental organization producing or implementing water quality management plans affecting the drainage of the rivers and streams, and their tributaries and coordinate and harmonize its proposed water quality management plans with any regional management plan heretofore or hereafter adopted by such intergovernmental organization.

(3) With the approval of the Tribal Council, the Environmental Protection Program may enter into contracts or agreements with agencies or with private, nonprofit organizations to prevent or reduce water pollution and attain relevant standards in the drainages of the rivers and streams and their tributaries within the jurisdiction of the Tribe.

(4) As necessary, the Environmental Protection Program will report to the Tribal Council on developments, progress, and problems in the process of intergovernmental cooperation, coordination, and information exchange.


1-1-105. Severability. The provisions of this Code are severable, and a finding of invalidity of one or more provisions hereof shall not affect the validity of the remaining provisions.


1-1-106. Effective Date. This Code and each provision hereof according to its terms shall take effect 90 days after its enactment. With the exception of the Environmental Protection Program's authority under Section 1-2-104, no permit, regulatory order or notice of violation shall be issued, nor any appealable agency action taken, until rules respecting the same are promulgated as provided in this Code. Where such rules are subject to review and approval by the USEPA, such rules may not be deemed final rules on which an action by the Environmental Protection Program may be based until such time as said rules are approved by the USEPA.

 

Part 2

Pollution Control Revolving Fund (Reserved)

 

Chapter 2

Administration


Part 1

Organization


1-2-101. Environmental Protection Program. The provisions of this Code will be primarily administered and enforced by the Environmental Protection Program, which is hereby designated as the Tribal Water Pollution Control Agency for all purposes of the Federal Water Pollution Control Act.


1-2-102. Powers of the Environmental Protection Program. The Environmental Protection Program shall have the following powers:

(1) To recommend to the Tribal Council the adoption, modification, or repeal of rules to implement the provisions of this Code pursuant to Sections 1-2-201 through 1-2-403;

(2) To enter and inspect at any reasonable time, and in a reasonable manner, any property, premise, or place for the purpose of investigating any activity causing, threatening or allowing water pollution, or ascertaining compliance or noncompliance with any rule or order promulgated under this Code. Such entry is also authorized for the purpose of inspecting and copying records required to be kept concerning any effluent source;

(3) If such entry is denied or not consented to, to obtain from the Tribal Court, prior to entry and inspection, a warrant to enter and inspect such property, premise, or place;

(4) To issue emergency orders pursuant to Section 1-2-104 of this Code, and to bring or defend lawsuits in Tribal Court to enforce the provisions of this Code; provided however, that nothing herein shall be construed as a waiver of any immunity the Tribe or its agencies have from suit;

(5) To conduct or cause to be conducted studies, research, and demonstrations with respect to the reduction or prevention of water pollution;

(6) To furnish technical advice and services relating to water pollution problems and control techniques;

(7) To advise, consult, cooperate, and, with Council approval, to enter into agreements with agencies, private nonprofit corporations, and owners or operators affected by the provisions of this Code; but any agreement involving, authorizing, or requiring compliance within the jurisdiction of the Oglala Sioux Tribe with any standard, rule or regulation of another jurisdiction shall not be effective unless and until the Environmental Protection Program and the Council have followed rulemaking requirements, including the holding of a hearing, and adopted rules in compliance with this Code;

(8) To certify, in accordance to the provisions of Section 1-3-117, facilities or activities subject to federal licensing requirements;

(9) To issue, modify, or revoke permits pursuant to Chapter 3 of this Code, and to grant or deny variances.


1-2-103. Duties of the Environmental Protection Program. The Environmental Protection Program shall have the following duties:

(1) To collect, compile, and analyze information relating to the physical, chemical, biological, radiological, and thermal properties of waters within the jurisdiction of the Tribe, and each distinguishable segment of such waters;

(2) To monitor the quality of waters within the jurisdiction of the Tribe by sampling and testing for the presence of pollutants and for compliance with water quality standards. As a result of such sampling, the Environmental Protection Program shall attempt to determine the nature and amount of each pollutant, the source of each pollutant, the place where each such pollutant enters the water, and the names and addresses of each person responsible for or in control of such entry. As to each separate pollution source identified, the Environmental Protection Program shall:

(a) determine what rules, if any, are applicable;

(b) determine whether the discharge is covered by a permit and whether or not any condition of the permit is being violated, and

(c) determine what further control measures, if any, are practicable, including whether to recommend the adoption of a new or revised water quality standard for that water segment.

(3) To inspect, from time to time, but no less often than annually, records of owners or operators of point sources, to assure compliance with permit conditions;

(4) To initiate and maintain a continuous planning process to attain water quality standards as more fully set out in Section 1-2-402 of this Code, to reduce or prevent pollution of waters within the jurisdiction of the Tribe, and, where necessary to enhance water quality in order to attain water quality standards;

(5) Within eighteen months of the effective date of this Code, to produce a recommended comprehensive water quality management plan for public hearing and for the consideration of the Council. The first plan need not include a nonpoint source management plan, but shall otherwise meet the requirements of Sections 1-2-402 and 1-2-403;

(6) To produce and submit to the Council and to the USEPA the first report assessing water quality for waters within the jurisdiction of the Tribe. At a minimum, the report will include a description of the operation of wastewater treatment plants, the identification and classification of pollution point sources, an assessment of the degree of eutrophication or other condition of lakes, an identification and classification of wetlands, and the projected attainment or non-attainment of water quality standards in classified water bodies. Such report shall include, with respect to wastewater treatment lagoon systems, the following information:

(a) An identification and description of such works, including the ownership, size, number of users or connections to the system, the location of outflow and identification of the receiving waters, the type of treatment undertaken, and the name of the certified operator;

(b) If the lagoons are operating under a federal or state permit, the conditions of the permit, including any pretreatment standards, standards of performance, or effluent limitations;

(c) If the lagoons are not operating pursuant to a permit, a description of any self-imposed restraints on the operations and a description of the physical, chemical, biological, radiological, and thermal characteristics of the discharges;

(d) Whether there is current planning for upgrading, enlarging, or renovating the lagoons or the disposal system with which the works are connected, and, if so, a copy of the plans;

(e) A priority ranking of the lagoons by the severity of the pollution discharged into receiving waters;

(f) The source(s) of funding for the construction of each facility, the proportionate mix of funds, the amount of any remaining obligation, and the method of repayment of any remaining obligation; and

(g) The rates paid by users and the method by which the rates are determined and assessed.

(7) To recommend to the Council the classification of waters within the Tribe=s jurisdiction. The types of classes and the particular class into which any discrete segment of such waters is placed shall be promulgated by rule pursuant to Sections 1-2-201 and 1-2-202 of this Code;

(8) To recommend water quality standards to the Council for adoption as rules, pursuant to Sections 1-2-203 through 1-2-210;

(9) To recommend to the Tribal Council rules controlling discharges by point sources in accord with Sections 1-2-301 through 1-2-303;

(10) To recommend to the Council by April 1, 2003, a nonpoint source management plan pursuant to Section 1-2-403 to be incorporated into the comprehensive water quality management plan; and

(11) To recommend to the Tribal Council rules to describe procedures and processes to control or prevent the pollution of lakes and wetlands.

1-2-104. Emergencies. Whenever the Environmental Protection Program determines, after investigation, that any person is engaged in an activity causing, threatening, or allowing the discharge of a pollutant into waters within the tribe's jurisdiction, which pollution, in the opinion of the Environmental Protection Program, constitutes a clear, present, and immediate danger to human health or to the livelihood of residents within the tribe's jurisdiction, the Environmental Protection Program 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 or prevent such discharge. Concurrently with the issuance of such order, the Environmental Protection Program may seek a restraining order and injunction.


Part 2

Classification and Standards


1-2-201. Classification of Waters Within the Jurisdiction of the Tribe.

(1) Within one year of the effective date of this Code, the Environmental Protection Program may recommend to the Council the adoption, by rule, of an interim classification of waters within the jurisdiction of the Tribe, based upon the best information available to the Environmental Protection Program at the time of proposing the interim classification. If such interim classification is proposed and adopted by rule, such rules shall expire one year from the date of adoption, and, prior to such expiration, the Environmental Protection Program shall recommend to the Council for adoption a revised classification, based upon such information as described in subsection (2).

(2) The types of classes of waters within the jurisdiction of the Tribe, except waters discharged from point sources, and the assignment of a particular water body or segment thereof into a particular class shall be promulgated by rule and may be based upon any relevant characteristic, such as

(a) the extent of existing pollution or the maximum extent of pollution to be tolerated as a goal,

(b) whether or not pollution arises from natural sources,

(c) present beneficial uses of the water, or the beneficial uses that may be reasonably expected in the future for which the water is suitable in its present condition, or the beneficial uses for which it is to become suitable as a goal,

(d) the character, uses, and status of the riparian lands or, in the case of subsurface water, of the overlying lands,

(e) the need to protect or enhance the quality of the water for public water supplies, for the propagation of fish and wildlife, for recreation, and for other existing beneficial uses, such as domestic, agricultural, and industrial uses and the need to minimize negative impacts on existing water uses, and

(f) the type and character of the water, such as surface or subsurface, and, if surface, lake, stream, or wetland, the volume, flow depth, stream gradient, temperature, surface area involved, and daily or seasonal variability of any such characteristics.


1-2-202. Reconsideration and Revision of Classification.
After the adoption of rules classifying waters within the jurisdiction of the Tribe, which -are not an interim classification, the Environmental Protection Program shall review and reconsider the classifications and their application to particular water bodies or segments from time to time, but not less often than every three years, in light of the best available information then available to it, and recommend to the Council any amendments or revisions to the classifications that it deems necessary or desirable, or report to the Council that no revisions to the classifications are needed, together with the reasons therefore.


1-2-203. Scope of Water Quality Standards.
Water quality standards may be promulgated by rule for use in connection with any one or more of the classes of waters within the jurisdiction of the Tribe established pursuant to Section 1-2-202, and may be made applicable to any designated portion of waters within the jurisdiction of the Tribe or to all such waters.


1-2-204. Interim Standards.
Within one year of the effective date of this Code, the Environmental Protection Program may recommend to the Council the adoption, by rule, of interim water quality standards for waters within the jurisdiction of the Tribe, based upon the best information available to the Environmental Protection Program at the time of recommending the interim standards. If interim standards are adopted, they will not necessarily form the bases for permanent standards, and the rules reflecting such interim standards shall be temporary in nature and shall expire two years from the date of adoption, provided that permanent standards have been adopted. Prior to such expiration, the Environmental Protection Program shall recommend to the Council permanent standards based upon the Environmental Protection Program data base as provided in Section 1-2-207 and the considerations described in Section 1-2-208.


1-2-205. Discharge of Toxic Pollutants Prohibited.
The discharge of toxic pollutants into waters within the jurisdiction of the Tribe is prohibited. The Environmental Protection Program shall not recommend, nor shall the Council adopt, a standard, either interim or final, permitting or limiting the discharge of toxic pollutants.

1-2-206. Antidegradation Policy.

(1) The Environmental Protection Program shall develop and recommend to the Council for adoption as a part of the water quality standards an antidegradation policy and methods implementing the same for all surface waters within the jurisdiction of the Tribe.

(2) At a minimum, the antidegradation policy and implementing methods shall include the following:

(a) The maintenance and protection of existing instream uses and a level of water quality necessary to protect existing instream uses;

(b) Where the quality of the waters exceeds levels necessary to support propagation of fish and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the Environmental Protection Program and the Council find, after full satisfaction of the intergovernmental coordination and public participation provisions of the Tribe=s continuing planning process (Section 1-2-402) that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. Moreover, in allowing any degradation or lower water quality, the Environmental Protection Program and the Council shall assure water quality adequate to protect existing uses fully, and assure the highest requirements for all new and existing point sources and all cost-effective and reasonable best management practices for point source and nonpoint source control.

(c) Where high quality waters constitute an outstanding Tribal resource, such as waters of ecological, recreational, or cultural significance, that water quality shall be maintained and protected.

1-2-207. Standards to be Based on Measurable Characteristics. The Environmental Protection Program shall propose to the Council water quality standards which describe measurable, numerical, characteristics of waters within the jurisdiction of the Tribe or the permissible parameters for the pollution of such waters, or both. Water quality standards are not limited to, but may include, such characteristics as:

(1) suspended solids, colloids, and combinations of solids with other suspended substances;

(2) bacteria, e-coli, fungi, viruses, and other biological constituents and characteristics;

(3) dissolved oxygen, and the extent of oxygen-demanding substances;

(4) phosphates, nitrates, and other dissolved nutrients;

(5) pH and hydrogen compounds;

(6) chlorine, heavy metals, and other chemical constituents;

(7) salinity or alkalinity;

(8) trash, refuse, oil and grease, and other foreign material;

(9) taste, odor, color, and turbidity; and

(10) temperature.


1-2-208. Considerations in Recommending Water Quality Standards. In recommending permanent water quality standards, the Environmental Protection Program shall consider:

(1) The need for standards which regulate specified pollutants, other than toxic pollutants;

(2) Such information as may be available to the Environmental Protection Program as to the degree to which any particular type of pollutant is subject to treatment or to reduction through the initiation of best management practices; the availability, practicality, and technical and economic feasibility of treatment techniques and best management practices; the impact of treatment upon water quantity; and the significance of the discharge of nonpoint source in relation to the degree of pollution in the water body or segment thereof;

(3) The continuous, intermittent, or seasonal nature of the pollutant to be controlled;

(4) The existing extent of pollution;

(5) Whether the pollutant arises from natural sources;

(6) The beneficial uses to be made of the water;

(7) Such information as may be available to the Environmental Protection Program regarding the persistence, cumulative effects, and degradation of a pollutant in the food chain of aquatic biota, and the parameters of the biological risk associated with the presence of a pollutant in a water body or segment; and

(8) The compatibility of the standards with the water quality standards adopted by the State of South Dakota for the waters in drainages upstream and downstream from the waters within the jurisdiction of the Tribe and with regional or intergovernmental water quality management plans.


1-2-209. Recommendations for Standards Based on Statistical Methods. In recommending water quality standards based upon or using statistical methodologies for deriving numerical data for pollutants, the Environmental Protection Program shall not rely upon statistics or statistical methodologies which are not demonstrably compatible with tribal water quality data.


1-2-210. Review and Revision of Standards. After the adoption of permanent water quality standards and upon petition of any interested person, or on its own motion, but not less often than every third year, the Environmental Protection Program shall review the water quality standards for consistency with the policies set forth in this Code and in the Federal Water Pollution Control Act and with any additional information gathered by the Environmental Protection Program. If the Environmental Protection Program determines that an inconsistency exists or that there is a need for clarification, the Director of the Environmental Protection Program shall recommend appropriate revision of the standards to the Council.


Part 3

Regulations Controlling Discharges


1-2-301. Scope of Control Regulations. The Environmental Protection Program may recommend to the Council the adoption of rules controlling discharges from point sources as follows:

(1) Establishing prohibitions, concentrations, and effluent standards or limitations on the extent of specifically-identified pollutants, including, but not limited to, those mentioned in Section 1-2-207, that any person may discharge into any specified class of waters within the jurisdiction of the Tribe;

(2) Establishing pretreatment requirements, prohibitions, concentrations, and effluent standards or limitations or, wastes any person may discharge into any specified class of waters within the jurisdiction of the Tribe from any type of facility, process or activity; and

(3) Establishing precautionary measures, both mandatory and prohibitory, that must be taken by any person owning, operating, or maintaining any facility, process, activity, or waste pile that does cause or could reasonably be expected to cause pollution of waters within the jurisdiction of the Tribe in violation of controlling rules or that does cause the quality of such waters to be in violation of any applicable water quality standard.

1-2-302. Consideration in Recommending Rules to Control Discharges. In the formulation of a recommendation to the Council to adopt rules controlling discharges, the Environmental Protection Program -shall consider the following:

(1) The need for rules controlling discharges of specified pollutants that are the subject of water quality standards for the receiving waters;

(2) The need for rules specifying treatment requirements for various types of discharges;

(3) The degree to which any particular type of discharge is subject to treatment, the availability, practicality, and technical and economic feasibility of treatment techniques, and the significance of the discharge in relation to the pollution of the receiving waters;

(4) Pretreatment standards, effluent limitations, and other control requirements promulgated by federal agencies;

(5) The continuous, intermittent, or seasonal nature of the discharge to be controlled; and

(6) The need for promulgation 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 and the drilling and operation of wells, and requirements as to settling ponds, holding tanks, and other treatment facilities for waste waters that will or may enter waters within the jurisdiction of the Tribe.


1-2-303. Rules for Wasteload Allocations and Total Maximum Daily Loads. Maximum wasteload allocations and total maximum daily loads developed in connection with the continuous planning process and with the preparation and adoption of a comprehensive water quality management plan as provided in Sections 1-2-402 and 1-2-403 shall be recommended by the Environmental Protection Program to the Council for incorporation, as appropriate, into the rules controlling discharges from point sources.


Part 4

Assessment Reports, Continuous
Planning Process and Management Plans


1-2-401. Assessment Reports. In addition to the first report, as provided in Section 1-2-103(6), the Environmental Protection Program shall prepare subsequent reports, no less often than biennially, assessing water quality for those waters within the jurisdiction of the Tribe. The reports shall be submitted to the Tribal Council, and, after public notice and an opportunity for oral or written comment by any interested person, to the USEPA . The reports shall include, at a minimum:

(1) Surface water quality generally:

(a) A description of the quality of all surface waters during the preceding biennium, taking into account seasonal and other variations, and correlated with the Tribal water quality standards and with the analysis required in (b) below;

(b) An analysis of the extent to which surface waters provide for public drinking water supplies, for the protection and propagation of indigenous fish and wildlife populations, and for recreation on and in the water;

(c) A description of the progress made in eliminating the pollution of waters and recommendations for additional steps to be taken toward the goals established by the water quality standards; and

(d) An estimate of the environmental impact and economic and social costs necessary to achieve the objectives of this Code and of the Federal Water Pollution Control Act and the economic and social benefits of achievement.

(2) Lakes and wetlands within the jurisdiction of the Tribe:

(a) An identification and classification, according to water quality conditions, of all lakes;

(b) A description of the procedures, processes and methods, both in use and proposed, to control sources of lake and wetland pollution;

(c) A description of current and proposed methods and procedures, undertaken in conjunction with federal and state agencies, to restore lake and wetland quality;

(d) A description of the degree of acidity of lakes and any measures taken or to be taken to mitigate the acidity;

(e) A list of lakes and wetlands which may be impaired, including those lakes and wetlands that do not meet water quality standards or that require control programs to meet the standards; and

(f) An assessment of the status and trends of lake and wetland quality and of any net loss or gain of natural or artificial wetlands;

(3) Nonpoint sources within the jurisdiction of the Tribe:

(a) A description of the nature and extent of nonpoint source pollution of surface and subsurface waters, together with recommendations for controlling such pollution and an estimate of the cost of implementing such recommendations;

(b) An identification of surface waters which, without action to control nonpoint sources, cannot be expected to attain or maintain Tribal water quality standards;

(c) An identification of categories and subcategories of nonpoint sources which add significant pollution to surface waters in amounts which contribute to any failure to meet Tribal water quality standards;

(d) A description of the process, including intergovernmental cooperation and public participation, for identifying the best management practices to control each category and subcategory of nonpoint source pollution to the maximum, extent possible; and

(e) An identification and description of Tribal or intergovernmental programs to control nonpoint source pollution, including any programs receiving federal assistance for nonpoint source management or for protecting the quality of subsurface water, and for, without limitation:

(i) Effluent limitations and schedules of compliance for point sources by category or for individual point sources at least as strict as those promulgated by the USEPA;

(ii) The incorporation of any area-wide wastewater treatment management plan;

(iii) The identification and revision, as necessary, of wasteload allocations and total maximum daily loads to be included in the comprehensive management plan;

(iv) Provision for an inventory and ranking of wastewater treatment works and for controls over the disposition of sewage sludge and other waste from water treatment processing; and

(v) Provision for revision of classifications, standards, and management plans, and for implementation of and compliance with water quality standards and with the comprehensive management plan, including the nonpoint source management plan.


1-2-402. Continuous Planning Process.
The continuous planning process to be carried out by the Environmental Protection Program pursuant to Section 1-2-103(4) shall include provisions for rulemaking, for development and revision of the comprehensive water quality management plan, for revision of surface water classifications and water quality standards, for the preparation and submission of assessment reports, and for, without limitation:

(1) Effluent limitations and schedules of compliance for point sources by category or for individual point sources at least as strict as those promulgated by the USEPA;

(2) The incorporation of any area-wide wastewater treatment management plan;

(3) The identification, and revision, as necessary, of wasteload allocations and total maximum daily loads to be included in the comprehensive management plan;

(4) Provision for an inventory and ranking of wastewater treatment works and for controls over the disposition of sewage sludge and other waste from water treatment processing; and

(5) Provision for revision of classifications, standards, and management plans, and for implementation of and compliance with water quality standards and with the comprehensive management plan, including the nonpoint source management plan.


1-2-403. Comprehensive Water Quality Management Plan. Within one year of the first recommended comprehensive water quality management plan as provided in Section 1-2-103(5), and at least every third year thereafter, the Environmental Protection Program shall recommend such revisions, deletions, or additions to the plan as may appear necessary or desirable in the course of the continuous planning process. Implementation measures, as well as limitations and standards, contained in the recommended plan shall be in the form of recommended rules, and any comprehensive plan or revision thereof shall be available to the public, who shall be supplied with notice of the availability of, and an opportunity to be heard on, any or all aspects of the plan. The plan must contain, but is not limited to, the following elements:

(1) An identification of waters within the jurisdiction of the Tribe where present limitations on discharges from point sources and publicly-owned treatment plants are insufficient to meet water quality standards and the priority of these according to the severity of the pollution and the uses to be made of the waters, and, for these waters, in accord with their priority ranking, the establishment of a total maximum daily load of pollutants that are not toxic pollutants listed by the USEPA, with seasonal variations and margins of safety.

(2) An identification of all other waters within the jurisdiction of the Tribe, and for each, an estimate of the total maximum daily load of pollutants that are not toxic pollutants listed by the USEPA, with seasonal variations and margins of safety sufficient to insure balanced indigenous populations of fish and wildlife; and

(3) With respect to nonpoint source management of waters within the jurisdiction of the Tribe:

(a) An identification of the best management practices and measures to be undertaken to reduce pollutant loading from each category and subcategory of nonpoint source pollution in each watershed, taking into account the impact of best management practices on groundwater quality;

(b) An identification of programs to achieve best management practices;

(c) A schedule, with milestones, for the implementation of best management practices in each water within the jurisdiction of the Tribe;

(d) An identification of sources of federal funding and other funding available to assist in controlling nonpoint source pollution for four years; and

(e) A description of the involvement in nonpoint source pollution control of local public and private agencies and organizations which have experience in control of nonpoint source pollution.


CHAPTER 3

Permitting, Penalties, and Remedies


Part 1

Permitting and Certification


1-3-101. Permits Required for the Discharge of Pollutants. Except as otherwise provided in this Chapter, no person shall discharge any pollutant into waters within the jurisdiction of the Tribe without having first obtained a permit from the Environmental Protection Program for such discharge. Neither a permit issued pursuant to this Chapter nor an application therefor creates or recognizes a right in the permittee or applicant to use waters within the jurisdiction of the Tribe for beneficial purposes or any other property right or interest.


1-3-102. Administration of Permits. The Environmental Protection Program shall examine applications for, and may issue, suspend, revoke, modify, deny, and otherwise administer permits for, the discharge of pollutants into waters within the jurisdiction of the Tribe.


1-3-103. Relationship to Federal NPDES Permits. To the extent authorized by the Federal Water Pollution Control Act, the Environmental Protection Program may provide by agreement with the USEPA or by other intergovernmental agreement, as appropriate, for Environmental Protection Program administration of National Pollution Discharge Elimination System (NPDES) permits issued to owners or operators of point sources under the Act. Any such agreement shall include provision for the authority and responsibility to enforce NPDES permit conditions to remain with the federal agency or agencies, but the Environmental Protection Program may be authorized to investigate any alleged violation of an NPDES permit.


1-3-104. Application for Permits.

(1) A complete and accurate application for all discharges shall be filed with the Environmental Protection Program:

(a) for all existing point sources within one year after the adoption of this Code, and in the event of an agreement with USEPA relative to the NPDES permits, within one year after the Environmental Protection Program receives notice from the USEPA that all preconditions to the exercise of Tribal permitting authority under the National Pollution Discharge Elimination System (NPDES) are satisfied, and publication of said notice in a newspaper of general circulation; and

(b) for all new sources to be constructed after the effective dates referred to in subsection (1)(a) above within 180 days prior to the date proposed for commencing the discharge.

(2) The application shall contain such relevant plans, specifications, water quality data, and other information relating to the existing or proposed discharge as the Environmental Protection Program may reasonably require.

(3) Owners or operators of new point sources may request, and if so requested the Environmental Protection Program shall grant, a planning meeting with the applicant. At such meeting, the Environmental Protection Program shall advise the applicant of the applicable permit requirements, including the information, plans, specifications, and the data required to be furnished with the permit application.


1-3-105. Incomplete Applications. An applicant shall be advised not more than 45 days after the receipt of an application by the Environmental Protection Program if, and in what respects, the application is incomplete. If additional information is requested by the Environmental Protection Program within the 45 day period, the Environmental Protection Program shall have 15 days from the date the additional information is submitted to determine whether the additional information which was submitted satisfies the request and to advise the applicant if, and in what respects, the additional information does not satisfy the request. A decision that an application is not complete is appealable as provided in Section 1-3-301 et seq. of this Code. A petition for review of such decision shall be given administrative and judicial priority.


1-3-106. Review, Notice, and Comment on Applications for Discharges by New Sources.

(1) The Environmental Protection Program shall evaluate complete permit applications to determine whether the proposed discharge will comply with all applicable federal and tribal laws and rules.

(2) Public notice of a complete permit application and the Environmental Protection Program's preliminary analysis thereof shall be given by publication in a daily newspaper of general circulation within the jurisdiction of the Oglala Sioux Tribe and shall be mailed to any person upon request. The notice shall advise of the opportunity for interested persons to submit written comments on the permit application and on the Environmental Protection Program's preliminary analysis.

(3) If a public meeting is requested and the Environmental Protection Program, in its discretion and for good cause shown, grants such request, the Environmental Protection Program shall hold such meeting not more than 60 days after the initial public notice. The Environmental Protection Program shall provide notice as provided in subsection (2) of this Section of the public meeting not less than 15 days prior to the date of such meeting.

(4) The period for public comment shall close 30 days from the date of notice of the permit application, or, if a public meeting is held, 60 days from the date of notice of the application.


1-3-107. Review, Notice and Comment on Applications of Existing Sources. Notice of applications and opportunity for comment on applications submitted by owners and operators of point sources existing on waters within the jurisdiction of the Tribe on the effective date of this Code will be made available only to interested persons upon request, unless the Environmental Protection Program determines that a variance to permit conditions should be issued. In the event of such a determination, the review, notice, and comment provisions applicable to new sources shall be followed by the Environmental Protection Program.


1-3-108. Time for Issuance or Denial of Permit. The Environmental Protection Program shall issue or deny a permit within 120 days after receipt of a complete application unless the time limit is waived or extended by the applicant or by the operation of the Federal Water Pollution Control Act.


1-3-109. Permit Rules and Conditions.

(1) The Environmental Protection Program shall recommend to the Council such rules as may be necessary and proper for the discharge of pollutants by point sources. Such rules shall be consistent with the provisions of this Code and with federal requirements.

(2) Such rules may pertain to and implement, among other matters, permit and permit application contents, procedures, requirements, and restrictions with respect to the following:

(a) Identification and address of the owner and operator of the activity, facility, or process from which the discharge is to be permitted;

(b) Location and quantity and quality characteristics of the permitted discharge;

(c) Effluent limitations and conditions for treatment prior to discharge to a publicly-owned treatment works;

(d) Monitoring as well as record-keeping and reporting requirements consistent with standard procedures and methods established by the Environmental Protection Program;

(e) Schedules of compliance;

(f) Procedures to be followed by Environmental Protection Program personnel for entering and inspecting premises;

(g) Submission of pertinent plans and specifications for the facility, process, or activity which is the source of a waste discharge;

(h) Restrictions on transfers of the permit;

(i) Procedures to be followed in the event of expansion or modification of the process, facility, or activity from which the discharge occurs or the quality, quantity, or frequency of the discharge;

(j) Duration of the permit, not to exceed five years, and renewal procedures;

(k) Authority of the Environmental Protection Program to require changes in plans and specifications for control facilities as a condition for the issuance of a permit;

(1) Identification of control regulations over which conditions of a permit may take precedence and a similar identification of rules over which permit conditions may never take precedence;

(m) Notice requirements of any intent to construct, install, or alter any process, facility or activity that is likely to result in a new or altered discharge;

(n) For treatment works, such terms and conditions as the Environmental Protection Program deems necessary or desirable to assure continuing compliance with applicable control regulations. Such terms and conditions may require that the permittee shall:

(i) 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;

(ii) Prohibit any connection to any permittee's interceptors and collection system that would result in receipt by the permittee of any effluent other than sewage;

(iii) Initiate engineering and financial planning for expansion of the treatment works whenever effluent put through the works and treatment reaches eighty percent (80%) of capacity; and

(iv) Commence construction of treatment works expansion whenever effluent put through the works and treatment reaches ninety-five percent (95%) of design capacity;

(o) inclusion of the requirements authorized by paragraphs (iii) and (iv) of subsection (2)(n) of this section shall be presumed unnecessary to assure compliance upon a showing that the area served by the treatment works has a stable or declining population; but this provision shall not be construed as preventing periodic review by the Environmental Protection Program if there is reason to believe that growth is occurring or will occur in the area.

1-3-110. Permit Issuance. The Environmental Protection Program shall issue a permit in accordance with the rules promulgated under this Part and with the Federal Water Pollution Control Act and the regulations thereunder when the Environmental Protection Program determines that the application and the proposed permit meet all requirements of this Code and of the federal law.


1-3-111. Runoff and Return Flows. Runoff from agricultural lands, storm runoff, and irrigation return flows are not point sources and are not, therefore, subject to the permitting system, provided, however, that the owner or operator of any system of works which stores, collects, conveys, or discharges such flow shall comply with the water quality standards established for the receiving waters in accordance with rules recommended by the Environmental Protection Program and adopted by the Council. Such compliance shall include protection of agricultural, domestic, industrial, public drinking water, and instream uses made of the waters stored, collected, or conveyed prior to the construction of the system of works.


1-3-112. Limitations on Permit Issuance.

(1) No permit shall be issued which is inconsistent with any duly promulgated land use or water quality management plan or with any portion of any approved regional wastewater management plan unless all other requirements and conditions of this Code have been met or will be met pursuant to a schedule of compliance or a variance specifying treatment requirements as determined by the Environmental Protection Program.

(2) No permit shall be issued which allows a violation of a control regulation unless the permit contains effluent limitations and a schedule of compliance or a variance specifying treatment requirements as determined by the Environmental Protection Program.

(3) No permit shall be issued which allows a discharge 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. Effluent limitations designed to meet water quality standards shall be based on application of appropriate physical, chemical, and biological factors reasonably necessary and feasible to achieve the levels of protection required by the standards.

(4) No permit shall be issued prior to its review and approval by the USEPA where such approval is required by the Federal Water Pollution Control Act or by regulations adopted thereunder.


1-3-113. Procedure upon Modification or Denial of Permit. If the Environmental Protection Program denies an application for a permit or modifies a permit during its term, the Environmental Protection Program shall give written notice of its action to the applicant or permittee, who may appeal the decision as provided by Section 1-3-301 et seq. of this Code. If a permittee does not appeal the decision to modify a current permit, the modification shall take effect 30 days after receipt of notice by the permittee unless the Environmental Protection Program specifies a later date. If the permittee appeals a modification, the modification shall be effective 20 days after the permittee has received the decision of a hearings officer ordering such modification.


1-3-114. Variances.

(1) The Environmental Protection Program may grant a variance from otherwise applicable requirements only to the extent authorized in the Federal Water Pollution Control Act or implementing regulations. Variances may be granted for no longer than the duration of the permit.

(2)

(a) Any request for a variance with respect to a permit condition shall be made within 30 days after issuance by the Environmental Protection Program of the final permit. Requests for variances from any other application of a control regulation shall be made within 30 days of public notice by the Environmental Protection Program of the proposed regulation or prior to operation of any new or expanded facility which would be affected by the control regulations. A variance may also be sought within 30 days of facts becoming available which had not been reasonably available to the applicant prior to that time.

(b) The Environmental Protection Program shall approve or disapprove any variance request and shall issue the Director's decision within 90 days after receipt of the variance request. Notice of a variance request shall be sent to anyone who has requested such notice. In the case of a variance being granted prior to the final permit being issued, the Environmental Protection Program shall publish for public notice and comment the entire draft permit with the variance incorporated therein. In the case of a variance granted after a final permit has been issued, the Environmental Protection Program shall publish for public notice and comment the variance as a proposed modification to the permit. Variance decisions of the Director of the Environmental Protection Program shall be subject to review as a part of any challenge to the conditions of a final discharge permit, to the modification of a permit, or to the application of a control regulation.


1-3-115. Permit Fees.
An annual fee to be paid by the owner or operator of a permitted point source discharge is the only fee the Environmental Protection Program may assess. The Environmental Protection Program shall recommend to the Council a schedule of fees to be adopted by rule. The recommended schedule shall be organized by categories and subcategories of point sources and shall be reasonably related to:

(1) the estimated cost to the Environmental Protection Program of monitoring permit compliance,

(2) the rate and volume of the discharge, and

(3) the physical, chemical, or biological properties of the pollutants discharged.

Fees collected shall be paid into a fund designated for use by the Environmental Protection Program and shall be exclusively for their expenses.


1-3-116. Undergro
und Fuel Storage. (Reserved)


1-3-117 Certification.

(1) Upon fulfillment of all federal conditions for approval of its certification program, the Environmental Protection Program may certify compliance with all applicable water quality requirements by an applicant for a federal license or permit to conduct any activity within the jurisdiction of the Tribe which may result in a discharge into waters within the jurisdiction of the Tribe. Such activity may include, but is not limited to, the construction or operation of facilities pursuant to such federal license or permit.

(2) The Environmental Protection Program shall recommend to the Council for adoption rules providing for public notice of all applications for certification and, as it may deem appropriate, for procedures for public hearings in connection with specific applications.


Part 2

Prohibition, Civil Penalties, and Remedies


1-3-201. Prohibited Activity.

(1) It is unlawful to:

(a) cause pollutants as defined in Section 1-1-102 to be introduced into any waters within the jurisdiction of the Tribe or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any such waters;

(b) violate any provision set forth in a permit, including but not limited to limitations, standards, and conditions contained therein;

(c) violate any order issued pursuant to this Code; or

(d) violate any provision of this Code or any control regulation or implementing rule promulgated pursuant to this Code.

(2) It is unlawful to carry on any of the following activities without a current permit from the Environmental Protection Program:

(a) construct, modify, or operate a disposal system which discharges into any waters within the jurisdiction of the Tribe;

(b) construct or use any outlet for the discharge of sewage, industrial wastes, or other wastes into any waters within the jurisdiction of the Tribe; or

(c) discharge sewage, industrial wastes, or other wastes into any waters within the jurisdiction of the Tribe.


1-3-202. Notification of Unpermitted Discharges -- Penalty.

(1) Any person engaged in an operation or activity which results in a spill or discharge of any substance which may cause pollution of the waters within the jurisdiction of the Tribe contrary to the provisions of this Code shall, as soon as he has knowledge thereof, notify the Environmental Protection Program of such spill or discharge. If the immediate notification is verbal, it shall be followed by written notification within three calendar days of the unpermitted discharge. The Environmental Protection Program shall recommend to the Council rules specifying the content and form of such written notice.

(2) Failure to so notify as soon as practicable is a violation of this Code, and the Environmental Protection Program shall bring a civil action for failure to notify against the person whose operation or activity resulted in the discharge. If the failure to notify is proved, the Tribal Court may assess the discharger a penalty not to exceed $25,000, in addition to any cleanup costs.


1-3-203. Spill Contingency Plan. The Environmental Protection Program shall develop a spill contingency plan in conformity with 33 U.S.C. Section 1321 and rules promulgated pursuant thereto and in consultation with the USEPA and such other agencies as may be necessary or appropriate. The plan may take the form of an intergovernmental agreement or rules recommended to the Council for adoption, or both. Nothing in this section affects or diminishes the Environmental Protection Program's responsibilities or authority, as provided in Sections 1-2-102, 1-2-103, 1-3-202, and 1-3-204 of this Code, to deal with emergencies arising from spills or unpermitted discharges.


1-3-204. Cleanup Orders.

(1) The Environmental Protection Program may issue an order to any person to clean up any material which he, his employee, or his agent has accidentally or purposely dumped, spilled, or otherwise deposited in or near waters within the jurisdiction of the Tribe which may pollute them.

(2) If a cleanup order is not complied with as soon as equipment and supplies needed for the cleanup can be brought to the site, or if the cleanup is not conducted in a manner satisfactory to the Environmental Protection Program, the Environmental Protection Program may undertake the cleanup, restoration of the site, and mitigation of any environmental damages and assess the costs of the same, including administrative costs, against the noncomplying person.


1-3-205. Action by Other Parties.

(1) Any person may apply to the Environmental Protection Program to investigate and take action upon any suspected or alleged violation of any provision of this Code or of any order, permit, or rule issued or promulgated under authority of this Code.

(2) The factual or legal basis for proceedings or other actions that result from a violation of this Code or of any permit, order, or rule issued hereunder inure solely to the Oglala Sioux Tribe for the benefit of the people of the Tribe, and it is not intended by this Code 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 Environmental Protection Program, shall not create any presumption of law or finding of fact which shall inure to or be for the benefit of any person other than the Oglala Sioux Tribe.

(3) Nothing in this Section abridges or alters rights of action or remedies existing on or after the effective date of this Code, nor shall any provision of this Code or anything done by virtue of this Code be construed as stopping persons from the exercise of their right to suppress nuisances.


1-3-206. Notice of Alleged Violation.

(1) Whenever the Environmental Protection Program has reason to believe that violation of a provision of this Code, or an order, permit, or control regulation issued or promulgated under the authority of this Code has occurred, the Environmental Protection Program shall cause written notice to be served personally or by certified mail, return receipt requested, upon the alleged violator or his agent designated for service of process. The notice shall state the provision alleged to be violated and the facts alleged to constitute a violation, and it may include the nature of any corrective action proposed to be required.

(2) Each cease and desist or compliance order issued pursuant to Sections 1-3-209 or 1-3-210 respectively shall be accompanied by or have incorporated in it the notice provided for in subsection (1) of this Section unless such notice has been given prior to issuance of such cease and desist or compliance order.


1-3-207. Hearing Procedures for Alleged Violations.

(1) In any notice given under Section 1-3-206, the Environmental Protection Program shall require the alleged violator to answer each alleged violation and require the alleged violator to appear at a public hearing before a hearing officer to provide such answer. Such hearing shall be held no sooner than 15 days after service of the notice, except that the hearings officer may set an earlier date for hearing if it is requested by the alleged violator.

(2) Hearings held pursuant to this Section shall be conducted in accordance with Section 1-3-301 et seq. Of this Code.


1-3-208. Suspension or Revocation of Permit. Upon a finding and determination, after hearing, that a violation of a permit provision has occurred, a hearings officer may suspend or revoke the permit and determine the civil penalties, if any, for which the violator shall be liable pursuant to Section 1-3-212.


1-3-209. Cease and Desist Orders. If the Director of the Environmental Protection Program determines that a violation of any provision of this Code or of any order, permit, or control regulation issued or promulgated under authority of this Code exists, the Environmental Protection Program 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 the acts or practices complained of must be terminated. The operation of a cease and desist order shall not be stayed by a hearings officer pending the hearing provided for in Section 1-3-207.


1-3-210. Compliance Orders. A person violating a condition, limitation, standard, or other requirement established pursuant to this Code may be served with a compliance order issued by the Environmental Protection Program. The order must specify the condition, limitation, standards, or other requirement violated and must set a time for compliance. In establishing a time or schedule for compliance, the Environmental Protection Program shall take into account the seriousness of the violation and any good faith efforts that have been made to comply with the condition, limitation, standards, or other requirements that have been violated. A compliance order shall be served either personally or by certified mail.


1-3-211. Injunctions Authorized.

(1) The Environmental Protection Program is authorized to commence a civil action in Tribal Court seeking appropriate relief, including a permanent or temporary injunction, for a violation which would be subject to a compliance order under Section 1-3-210.

(2) The Environmental Protection Program may bring an action for an injunction against the continuation of an alleged violation of the terms or conditions of a permit or any rule or effluent standard promulgated under this Code or against a person who fails to comply with an emergency order under Section 1-2-104. The Tribal Court may issue a temporary injunction if it finds that there is reasonable cause to believe that the allegations of the Environmental Protection Program are true, and it may issue a temporary restraining order pending action on the temporary or permanent injunction.


1-3-212. Civil Penalties Remedies Cumulative. A person who violates this Code or a rule, permit, effluent standard, or order issued under the provisions of this Code shall be subject to a civil penalty not to exceed $10,000 for each provision violated. Each day of violation constitutes a separate violation. Action under this section does not bar enforcement of this Code or rules or orders issued under it by injunction or other appropriate remedy. All remedies under Chapter 3, Part 2 are cumulative. All monetary penalties assessed under this Section or Section 1-3-202 are to be paid into a fund designated for use by the Environmental Protection Program and shall be exclusively for that program's expenses.


1-3-213 Costs and Expenses Recovery by the Environmental Protection Program. In a civil action initiated by the Environmental Protection Program under this Part, the Environmental Protection Program may ask for and the Tribal Court is authorized to assess a violator for the cost of the investigation or monitoring survey which led to the establishment of the violation and any expense incurred by the Environmental Protection Program in removing, correcting, or terminating any of the adverse effects upon water quality resulting from the unauthorized discharge of pollutants.


1-3-214. Intervention. Any person with a demonstrable interest in a final decision or order of the Environmental Protection Program may, for good cause shown, intervene in any proceeding stemming from such decision before a hearings officer or before the Tribal Court if the cause was not heard by a hearings officer or was appealed from the determination of such officer.


Part 3

Administrative Appeals and Judicial Review


1-3-301 Administrative Appeals and Judicial Review.

(1) Administrative Appeals:

(a) Any person aggrieved by a decision of the Environmental Protection Program, or the failure of the Environmental Protection Program to Act in a timely manner as provided in this Code, shall seek administrative review within ten (10) working days from the date of that decision by filing a Notice of Appeal with the Oglala Sioux Tribe Environmental Technical team, by filing the notice of appeal at the Office of the Environmental Protection Program.

(b) The Environmental Protection Program, Water Quality Coordinator shall, within ten (10) working days from receipt of the Notice of Appeal, forward to the Oglala Sioux Tribe Environmental Health Technical Team a copy of all records and documents in the files regarding the matter being appealed.

(c) The Oglala Sioux Tribe Environmental Health Technical Team shall, within 30 working days from receiving the records and documents, decide the appeal based on the record and any written submissions from interested parties. Written submissions must be filed with the Oglala Sioux Tribe Environmental Health Technical Team within twenty (20) working days from the filing of the Notice of Appeal. The decision of the Oglala Sioux Tribe Environmental Health Technical Team shall be final for the Tribal Administration.

(d) The burden of proof is with the party bringing the appeal.

(e) Where the appeal challenges the issuance of a permit to discharge pollutants into a water body, the permit shall be held in abeyance pending the decision of the Oglala Sioux Tribe Environmental Health Technical Team.

(2) Judicial Review. Any person who was a party to the appeal before the Oglala Sioux Tribe Environmental Health Technical Team and receives an adverse decision may file an appeal for relief other than money damages in the Oglala Sioux Tribal Court against the Director of the Environmental Protection Program within 30 calendar days from the date of the adverse decision. Tribal Court review is limited to:

(a) whether the decision is supported by substantial evidence;

(b) whether the action complained of is in compliance with the Water Resources Management Code; or

(c) whether the action of the Department is contrary to tribal law or is arbitrary and capricious.

(d) the Office of the Tribal Attorney shall represent the Director of the Environmental Protection Program in the Director=s official capacity for the purposes of the appeal.

1-3-302 Authority to Seek Enforcement. The Director of the Department is authorized, in addition to any other powers provided by this Code, and with or without the Tribal Attorney's assistance, to issue a Cease and Desist Order, Compliance Order or other similar order as the Director shall deem necessary to enforce this Code including seeking in the Oglala Sioux Tribal Court any remedy otherwise available under Tribal law, including, but not limited to, an order that the unpermitted activity be stopped, and/or an order for money damages in an amount necessary to remedy any adverse effects caused by the unpermitted activity.

CERTIFICATION

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