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Poarch Band of Creek Indians Tribal Code

[Includes amendments and additions dated through 2004]

CHAPTER 26 - ENVIRONMENTAL PROTECTION


Prepared For: Poarch Band of Creek Indians, 5811 Jack Springs Road, Atmore, Alabama 36502

Prepared By: ENSAFE, 201 N. Palafox Street, Suite 200, Pensacola, Florida 32501

August 1999


Approved 8-20-99
Initials                
[Initials on original document.]

Table of Contents

§ 26 Environmental Protection

§ 26-1 General Provisions

§ 26-2 Solid Waste Management Program

§26-3 Land Resource Management Program

§ 26-4 Water Resource Management

 

§ 26-1 GENERAL PROVISIONS


§ 26-1-1 Short Title

This Code shall be known as the Poarch Band of Creek Indians' Environmental Code (herein "the Environmental Code"), and shall apply to the tribe's Environmental Program and each of its sub-programs.


§ 26-1-2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly states otherwise:

Board. "Board" means the tribe's Environmental Protection Board. The Board issues permits, holds public and administrative hearings under the Environmental Code; and performs those duties delegated to it under the Code.

Code. "Code" means the Poarch Band of Creek Indians' Environmental Protection Code. The Environmental Code incorporates by reference the Title 40 and related Federal Environmental Criteria.

Director. "Director" means the Director of the tribe's Environmental Department. The Director is the chief administrative officer of the Environmental Program.

Environmental Program "Environmental Program" means the tribe's program to manage and regulate the environment on Tribal lands, and its natural resources, and to protect the health, welfare, political integrity, and economic security of the Tribe, its members, and residents living on or near the Reservation.

EPA. "EPA" means the United States Environmental Protection Agency.

Guidance Document. "Guidance document" means a document prepared by the Director of the Environmental Department that supplements criteria under the Environmental Code. A guidance document may provide specific technical direction concerning environmental matters, may be referred to or attached as conditions to permits, and may also provide direction as to how the Director of the Environmental Department interprets the Environmental Program, consistent with Tribal laws and the Environmental Code.

Indian Tribe or the Tribe. "Indian Tribe" or "the Tribe" means any Indian tribe, band, nation, or community recognized by the Secretary of the Interior and exercising substantial governmental duties and powers within Indian Country.

Lead Agency. "Lead Agency" means the tribe's Environmental Department which has the legal authority and the oversight responsibilities to regulate and monitor the Environmental Program.

Permit. "Permit" means an authorization and license issued under the authority of the Board regulating certain activities on the Reservation as required under the Environmental Code.

Permit Documents. "Permit documents" means permit applications, drafts and final permits, or other documents that include the technical and administrative information used to explain the basis of permit conditions, including applicable guidance documents.

Permittee. "Permittee" means a person who is authorized and permitted by the Board to engage in certain activities in compliance with the Environmental Code.

Person. "Person" means any individual, trust, firm, association, partnership, Indian Tribe, Tribally chartered corporation or business, political subdivision, government agency, municipality, industry, public or private corporation, any legal entity or private enterprise, and includes members of the Poarch Band of Creek Indians, all other non-member Indians, and all non-Indians.

Reservation. "Reservation" or "on the Reservation", or "on or within the Reservation" means the Poarch Band of Creek Tribe Indians' Reservation and includes all lands of any kind within the exterior boundaries of the Reservation.

Rules and Regulations. "Rules and Regulations" mean any rules and regulations promulgated by the Board, and adopted by the Tribal Council, regulating the Environmental Program, which will implement, supplement or regulate any provisions of the Environmental Code.

Title 40 and Related Federal Environmental Criteria. "Title 40 and Related Federal Environmental Criteria" means Title 40 of the Code of Federal Regulations, as amended, as well as associated federal statutes, and various regulations promulgated thereunder by the EPA, or other applicable federal rules or statutes. The Tribe intends by the adoption of the Environmental Code, to comply with these Criteria.

Tribal Council or Council. "Tribal Council" or "Council" means the governing body of the Poarch Band of Creek Indians.

Tribal Court. "Tribal Court" means the Tribal Court of the Poarch Band of Creek Indians.

The Tribe or Tribal "The Tribe" or "Tribal" means or refers to the Poarch Band of Creek Indians.


§ 26-1-3 The tribe's Inherent Sovereign Power To Manage And Regulate Environmental Protection On The Reservation

The power to manage and protect the environment on the Poarch Creek Reservation (herein "the Reservation"), which is anywhere on or within the Reservation, inherently resides within the retained sovereign power of the Poarch Band of Creek Indians (herein "the Tribe"). This Environmental Code is enacted pursuant to the sovereign tribal powers described in Section 1-1-1 of the Tribal Code, which outlines the sovereign rights of self-governance for the Tribe. Pursuant herein, the Tribal Council (herein "the Council") will manage and otherwise deal with Tribal lands, natural resources and property; will promulgate and enforce rules and regulations providing for the health, safety, and welfare of the Tribe and its members and residents; will maintain law and order and protect the environment on the Reservation; will administer justice on the Reservation; will regulate Tribal boards, agencies, and employees; and will delegate to Tribal boards, agencies, and employees, the foregoing powers, subject to review by the Council.


§ 26-1-4 The tribe's Environmental Program

The Tribe desires to create and manage an Environmental Program (herein "the Environmental Program") on the Reservation in order to protect the environment on Tribal lands, its natural resources, and the health, welfare, political integrity, and economic security of the Tribe, its members, and residents living on or near the Reservation.

The Tribe is required by federal law to comply with Title 40 of the Code of Federal Regulations, as amended, as well as associated federal statutes, and various regulations promulgated thereunder by the U.S. Environmental Protection Agency (herein "EPA"). These federal laws and regulations are herein referred to as the "Title 40 and related Federal Environmental Criteria."

The Tribe intends by the adoption of the Environmental Code, to comply with the Title 40 and related Federal Environmental Criteria. Once the tribe's Environmental Code is adopted by the Tribal Council, the Director of the tribe's Environmental Protection Board shall apply to the Regional Administrator, EPA Region IV, through the Regional Tribal Program Coordinator, for its approval of the Environmental Program, as adopted from time to time under the Environmental Code.

Upon EPA approval of the Environmental Program under the Title 40 and related Federal Environmental Criteria, the Tribe is entitled to treatment as a State in complying with these Criteria. It is intended that the Environmental Program be as stringent as the Title 40 and related Federal Environmental criteria; however, the Tribe reserves the right to be more stringent than these Criteria where necessary.


§ 26-1-5 The tribe's Sovereign Immunity

Neither the Environmental Code, nor the Environmental Program, nor any action or agreement of the Environmental Protection Board, shall be construed as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed by the Tribe, or a consent by the Tribe to jurisdiction or suit against it.

The Tribe reserves the right to contest the jurisdiction of any court in any suit filed against it.

The Tribe, the Council and its members; the tribe's Environmental Protection Board and its members; the tribe's Environmental Department, and its Director and employees; and all other Tribal officers, employees, representatives, or agents thereof, who are performing their duties by implementing or enforcing the Environmental Code and the Environmental Program, are immune from environmental suit in any court of law, and they do not waive any of their sovereign rights or immunities; executive privileges or right to privacy or confidentiality.

The Tribe, the tribe's Environmental Protection Board and the tribe's Environmental Department may enter into such contracts as are authorized by the Council, for the purpose of implementing or enforcing the Environmental Code and the Environmental Program; provided that such contracts shall not be construed to be a waiver of the sovereign rights or immunities of the Tribe, or any board, agency, entity, officer, employee, representative, or agent thereof.


§ 26-1-6 The Tribe Has Civil Jurisdiction Under The Environmental
Protection Program Over All Persons And Places On Or Within The Reservation

The Tribe has inherent sovereignty to exercise civil authority and jurisdiction over the conduct of Tribal members and all other persons on all lands on or within the Reservation, under the Environmental Code, to maintain the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe.

Because any violations of this Environmental Code or any rules or regulations adopted hereunder will demonstrably and seriously impact the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe, the Environmental Code, and any rules and regulations adopted hereunder, shall apply to: (1) all persons on or within the Reservation, without exception, including but not limited to, all Tribal members, and all other persons on the Reservation, including any Indians who are members of other Indian Tribes, all non-Indians, Tribal employees, and any other person as defined under the Environmental Code; and (2) all places and lands located anywhere on or within the Reservation, including all trust and non-trust lands, and notwithstanding the issuance of any patent, fee, allotment, right-of-way, lease, or any real property interest of any kind, held by any person as defined under the Environmental Code.


§ 26-1-7 Purposes Of The Tribal Environmental Protection Code

The purposes of the Environmental Code are to:

(a) Protect the health and safety of Tribal members and all other persons on or within the Reservation;

(b) Protect the cultural, social, and economic stability of residential, agricultural, commercial, industrial, forest, riparian, and environmentally sensitive lands within the Reservation;

(c) Protect the historical and cultural values and traditions of the Tribe, the Reservation as a permanent Tribal homeland, and the aboriginal character of the Reservation;

(d) Prevent environmental pollution of air, water, and land, including contamination of the tribe's aquifers, groundwaters, surface waters, drinking water supplies, and all other natural resources;

(e) Prevent the deterioration of the environment, standard of living, quality of life, welfare and well-being of all persons on or within the Reservation;

(f) Provide and promote Tribal environmental protection and services within the Reservation, and to regulate environmental activities under principles of Tribal sovereignty; and

(g) Implement, regulate, and enforce environmental standards and criteria, orders and permit conditions, and laws and regulations under the Environmental Code on or within the Reservation.


§ 26-1-8 Consensual Relations Among Non-Members,The Tribe And Tribal Members

Any person who is not a member of the Tribe who uses land anywhere on or within the Reservation, whether trust or non-trust land, thereby enters into consensual relationships with the Tribe or its members, through commercial dealings, contracts, leases, or other arrangements. Such person's use of land could have a demonstrably serious impact upon the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe, and its members, unless such use is in compliance with the provisions of this Environmental Code, and any rules or regulations promulgated hereunder.


§ 26-1-9 Applicability Of Environmental Code

Any person who visits, resides, or provides commercial services on or within the Reservation, whether on trust or non-trust lands, agrees to comply with, and is subject to the Environmental Code, and any rules or regulations promulgated hereunder; all Tribal laws; and all orders of the Environmental Protection Board, Environmental Department, and Tribal Court. All such persons shall have consented to the civil jurisdiction of the Poarch Creek Tribal Court (herein "the Tribal Court"), and shall be subject to civil prosecution, civil penalties, civil damages, or any other civil remedies imposed or awarded by the Tribal Court for any violations of the Environmental Code, or any rules or regulations promulgated hereunder.



§ 26-1-10 Establishment Of The Environmental Protection Board

An Environmental Protection Board (herein "the Board"), is hereby established, which shall be composed of five Commissioners, all of whom shall be members of the Tribe, as described in Article I of the Constitution of the Poarch Band of Creek Indians.

The Commissioners shall be appointed by the Council. Each Commissioner shall serve a term of four (4) years, but to provide for a staggering of terms for Commissioners, the original Commissioners shall be appointed for progressive terms as stated in the Environmental Protection Board Ordinances.

A Commissioner may only be removed by the Council for cause in compliance with Tribal law. If a Commissioner is removed, resigns or is otherwise unable to serve, a replacement shall be appointed by the Chairman of the Tribe with the advice and consent of the Tribal Council, and such replacement shall serve the remaining term of the replaced member. The Commissioners shall elect a Chairman from among themselves at the end of each calendar year to serve as the Chairman for the succeeding calendar year. A Commissioner may serve as Chairman of the Board for succeeding calendar years. The expenses of the Commissioners, including any staff, equipment and training, shall be pursuant to a budget which must be approved by the Council. The Council shall establish a meeting stipend for the Commissioners commensurate with the amount of time reasonably and necessarily expended by them.


§ 26-1-11 General Powers And Duties Of The Environmental Protection
Board

The Board shall develop environmental policy for the Tribe, and shall implement, administer, and enforce the Environmental Code, pursuant to all of the powers and duties delegated to it herein. The Board shall also be responsible for administering related programs as authorized under Tribal law. The Board is not authorized to consent to jurisdiction, liability, or waiver of sovereign immunity.


§ 26-1-12 Quorums and Meetings

The business of the Board will be conducted at meetings of the Board duly called and noticed in writing pursuant to Article VIII, 42-45 of Robert's Rules of Order. A quorum must be present, which must consist of at least three (3) Commissioners. Any substantive action of the Board must be taken by the affirmative votes of at least three (3) Commissioners and must be recorded in a written resolution of the Board. The Board shall meet at such places and times as may be necessary for the discharge of its duties. Meetings of the Board may be called by the Board Chairman or by three (3) of the Commissioners. Any meeting of the Board shall be preceded by at least five (5) days written notice to the Commissioners, except where immediate action is necessary to adequately protect human health and the environment. The Board will keep a complete and accurate record of the proceedings of its meetings, a copy of which will be kept on file and will be open to public inspection.


§ 26-1-13 Power Of The Environmental Protection Board To Conduct Hearings

In addition to other powers conferred upon it herein, the Board shall have the power to hear and determine appeals of administrative action as specifically provided for under the Environmental Code. The Board shall schedule such hearings at a convenient location, and give reasonable advance notice of the date, time and subject matter(s) of such hearings, by publication in the monthly Tribal News on the Reservation. There shall be a reasonable opportunity for anyone to comment at such hearings, and to present any relevant information.


§ 26-1-14 Power Of The Environmental Protection Board To Grant Permits, Take Remedial Action, Assess Civil Penalties, And Revoke, Suspend Or Modify Permits

The power of the Board to enforce compliance with the Environmental Program includes the power to grant permits, and to take remedial action, seek civil penalties through the Tribal Court, and revoke, suspend or modify permits. Any permittee shall be required to comply with the Environmental Code, any rule or regulation promulgated hereunder, all Tribal environmental standards and criteria, all relevant guidance documents, all permit conditions, all orders issued by the Board or Environmental Department under authority of the Environmental Code, and all applicable federal or Tribal laws, environmental in nature or otherwise.


§ 26-1-15 Duty Of The Environmental Protection Board To Promulgate Rules And Regulations, And To Issue Guidance Documents

The Board shall promulgate, establish, adopt, modify, repeal, and suspend any rules, regulations, or environmental standards that may be applicable to the Tribe as a whole or any of its geographic parts, as required by the Environmental Code, or to implement or enforce any provisions or requirements of the Environmental Code, including a system of civil fines, sanctions and penalties, for violations of the Environmental Code or any rules and regulations promulgated under the Environmental Code. All rules and regulations promulgated by the Board, within the scope of its authority and responsibility, shall be submitted to the Council for its approval and adoption, before they are enforceable as Tribal law on the Reservation. The Board shall allow public participation via informal public hearings prior to issuance of, or modification or revocation of regulations as provided in § 26-1-27 (a) herein.

The Board, with the assistance of the Director of the tribe's Environmental Department, may also approve and issue "Guidance Documents" as part of the Environmental Program, which shall contain specific technical or scientific criteria. Guidance documents may supplement the Title 40 and related Federal Environmental Criteria, but any criteria set forth in any guidance document shall not be in conflict with the Title 40 and related Federal Environmental Criteria, or contain any criteria which are less stringent than the Title 40 and related Federal Environmental Criteria. Guidance documents issued by the Board, however, may provide more stringent criteria than are required by the Title 40 and related Federal Environmental Criteria. Guidance documents are intended to supplement the Environmental Code; however, they shall be enforceable if they are specifically referenced or incorporated, as part of, or as a condition of, any permit issued under the Environmental Code.


§ 26-1-16 The Environmental Protection Board Shall Prepare And File An Annual Report With The Tribal Council

The Board shall prepare and file an annual report with the Council no later than March 31st of each year. The annual report shall review the progress achieved under the Environmental Program; enforcement, and civil actions; permitting; and shall include any reports requested by the Tribal Council. The Board may recommend specific actions that should be taken by the Council regarding the Environmental Program.


§ 26-1-17 The Environmental Department Is The Lead Tribal Agency

The Environmental Department is hereby designated as the Lead Tribal Agency for all environmental enforcement matters associated with the tribe's affairs. The Board will advise the Director of the Environmental Department on environmental matters which are within the Department's scope and authority. The Environmental Department shall communicate with the Regional Administrator, EPA Region IV, through the Regional Tribal Program Coordinator, regarding the Environmental Program; prepare the application for EPA approval of the program under the Title 40 and related Federal Environmental Criteria; and make reports as may be required excluding any confidential or privileged information.


§ 26-1-18 Duties Of The Director Of The tribe's Environmental
Department

The specific duties of the Director of the Environmental Department are stated in the job description provided by the tribe's Human Resources Department.


§ 26-1-19 Duty Of The Director Of The Environmental Department To
Investigate The Activities Of Any Person(s) Under The Environmental Code

The Director of the Environmental Department or his agents, to include any authorized employee, agent or representative of the Environmental Department, including any agents of the EPA specifically authorized by both the Director of the Environmental Department and the Board, are authorized to investigate the activities of any person suspected of violating, or who may be violating, any provisions of the Environmental Code, any rules or regulations promulgated hereunder, or any permit conditions. Upon complaint by any person which establishes reasonable grounds, or upon its own motion, the Director of the Environmental Department or his agents, shall investigate the activities of any tribal member and any other person or any permittee on any land on or within the Reservation under the Environmental Code. In conducting an investigation, the Director of the Environmental Department, shall have the authority, during normal business hours or at other times with reasonable notice, or upon being issued a warrant by the Tribal Court, to enter into said person(s)' place of business, operation, or facility, to inspect any books or records of said person(s)', to inspect any of said person(s)' property, or sites of possible pollution, and to take appropriate samples of potentially polluted media. In addition, the Environmental Department may require or monitor such tests as it deems necessary, to ensure that the provisions of the Environmental Code or any permit conditions, are being complied with.


§ 26-1-20 Compliance, Abatement And Remedial Action Orders

(a) Any Tribal member/person/owner/operator/user who violates any of the conditions in his permit, who violates any part of the Environmental Code or any rule, regulation, or guidance document adopted under this Code, or who violates any relevant Tribal environmental criteria or standards or any other Tribal or federal environmental law, shall upon order of the Director of Environmental Department cease and desist from any improper action or violation(s), abate any hazard, pollution, or nuisance, and otherwise comply with any directive, or corrective or remedial action order issued by the Director of the Environmental Department.

The Director of the Environmental Department may, within the scope and authority delegated by the Board, issue an order requiring compliance immediately or within a specified period of time. A compliance order shall state with reasonable specificity the nature of the violation, a compliance schedule, if applicable, and the right to an appeal to the Tribal Court. A compliance order shall be hand-delivered to the alleged violator. An order issued by the Director of the Environmental Department shall become final unless an appeal is filed with the Tribal Court for a hearing within fourteen (14) days of receipt of the order.

The Director of the Environmental Department may file an action in Tribal Court to enforce final orders issued under this section.

(b) Imminent Harm and Remedial Actions By the Board. If any of the circumstances set forth herein above pose an imminent harm to life or health, the Board may expend any available monies in the trust fund as described in § 26-1-24 herein to perform any cleanup, abatement, or remedial work required.

(c) Remedial Actions By The Board. If any of the circumstances set forth herein above do not pose an imminent threat to life or health, and the Director of the Environmental Department has ordered any clean up, abatement, corrective or remedial work, and the permittee fails to perform such work as ordered, the Board is authorized, with the approval of the Tribal Council, to perform such work and expend monies in the trust fund, as described in § 26-1-24 herein, for such purpose as it deems reasonably necessary for the public health and safety.

(d) Liability for Remedial Costs. If environmental pollution is cleaned up, the effects thereof abated, or any other necessary remedial action is taken by the Board under this Chapter, because of violations of the Environmental Code or any rule or regulation or guidance document adopted under this Code, the person(s) who committed such violation(s) shall be liable to the Tribe for the reasonable costs actually incurred in remediating any environmental insult, abating the effects thereof, or taking other corrective or remedial action, including all damages to the natural resources of the Tribe or its members as determined by the Board. The amount of such costs shall be recoverable by the Tribe in a civil action brought by the Director of the Environmental Department, filed in the Tribal Court, together with the costs of suit, including reasonable attorney's fees. Any judgment ordering the payment of these costs to the Tribe will bear interest at the rate of ten percent (10%) per annum.

(e) Compliance Schedules. Upon issuance of a temporary restraining order, as described in § 26-1-21(a) herein, the Tribal Court may direct the Director of the Environmental Department to develop a compliance schedule for any Tribal member/person/owner/operator/user who is not in compliance with any permit condition, or any criteria under this Environmental Code, or its rules or regulations, or Guidance Document. The compliance schedule shall assure that diligent progress shall be made by such person(s) to bring him into compliance within a specified period of time. Compliance with such schedule shall be subject to the continuing jurisdiction of the Tribal Court.


§ 26-1-21 Temporary Restraining Orders And Injunctive Relief

(a) If the Director of the Environmental Department has reason to believe that any person is in violation of any provision herein, any rule or regulation promulgated herein, any condition of any permit issued under the Environmental Code, or that any person is creating an imminent and substantial endangerment to the public health or the environment, the Director of the Environmental Department may, on behalf of the Tribe, file an action in Tribal Court requesting a temporary restraining order, a preliminary injunction, or any other relief necessary to protect the public health and the environment. No bond for the issuance of any temporary restraining order or preliminary injunction shall be required.

(b) No temporary restraining order shall be issued by the Tribal Court without prior notice to the person committing the alleged violation(s), unless it clearly appears that immediate and likely injury, loss, or damage will result to the public health or the environment. Each temporary restraining order shall clearly describe the act or acts that are enjoined, and shall specifically define the injury and state why it is likely, and why the order was entered without notice. Any temporary restraining order shall be served upon the person(s) committing the alleged violation(s), along with the complaint and any other pleadings. Every temporary restraining order shall be binding upon the parties named in the order, and their officers, agents, servants, employees, and attorneys, including any other persons who are in active concert or participation with them who have notice of the order.

(c) No preliminary or permanent injunction shall be issued by the Tribal Court without notice to the adverse party and a hearing. An application for a preliminary injunction shall be set for a hearing at the earliest possible time, and shall take precedence over all matters except older matters of the same character. For good cause shown, the Tribal Court may extend the temporary restraining order until the hearing on the preliminary injunction.

(d) The right of the Director of the Environmental Department to seek injunctive relief under this Chapter is in addition to any other right that he has to enforce compliance with any of the provisions of the Environmental Code, rules or regulations promulgated hereunder, or conditions of permits issued under the Environmental Code.


§ 26-1-22 Civil Penalties

Any person who violates any of the provisions herein is subject to the imposition of civil penalties for such violation. The Director of the Environmental Department, is authorized to file a civil action against such person on behalf of the Tribe in the Tribal Court for civil penalties, including reasonable attorney's fees and costs. Any civil action concerning such violation(s) shall be heard in the Tribal Court, and the alleged violator shall be served and have an opportunity to be heard in accordance with the rules of the Tribal Court. Any person who is found by the Tribal Court to have committed the alleged violation(s) shall be subject to a civil penalty of not less than Twenty-Five Dollars ($25.00), but not more than One Thousand Dollars ($1,000.00), for each day each violation occurs, including reasonable attorney's fees and costs.


§ 26-1-23 Civil Damages

The Director of the Environmental Department is authorized to bring a civil action on behalf of the Tribe or its members, in the Tribal Court or any other court of law, against any person who has committed any violation under the Environmental Code, for all civil damages caused,-including damages to the land or natural resources of the Tribe or its members, and for the reasonable costs actually incurred or to be incurred by the Tribe for remediating any environmental insult, or abating the effects thereof, together with the costs of suit, including reasonable attorney's fees.


§ 26-1-24 Enforcement

All civil penalties and civil damages assessed under the Environmental Code by the Tribal Court and civil damages assessed by any court of law shall be paid to the Tribe, and shall be retained in a trust fund designated for paying costs of remedial responses to environmental emergencies occurring on the Reservation, and Board meeting stipends.

Reasonable attorney's fees awarded in any civil action shall be paid to the Tribe, if the attorney(s) is an employee(s) of the Tribe, or shall otherwise be paid according to the provisions of any retainer agreement. All costs of suit awarded in any civil action shall be paid to the Tribe.

Any civil penalties or damages imposed under the Environmental Code are in addition to, and do not supersede or limit any other remedies which may be available to the Tribe, including the filing of an action for injunctive relief in Tribal Court, or the filing of a civil action for civil damages or any other relief in any court of competent jurisdiction.


§ 26-1-25 Compliance Monitoring

The Director of the Environmental Department shall have the right to obtain any and all information from any Tribal member/person/owner/operator/user under the Environmental Code, including but not limited to records and technical reports or studies, whether contained in the permittee's operating record or not, which may be relevant to determine whether a Tribal member/person/owner/operator/user is in compliance with all Tribal requirements, including but not limited to the Environmental Code, any condition contained in a permit, any rules or regulations promulgated under the Environmental Code, any guidance documents, any orders issued pursuant to the Code, or any federal or Tribal environmental laws.

Any such information obtained by the Director of the Environmental Department, and the results of any sampling, monitoring or testing, shall be admissible as evidence in any proceeding before the Board or Tribal Court.


§ 26-1-26 Board Hearings Pertaining To Revocation, Suspension, Or Modification Of Permits

(a) Statement of Charges. A hearing before the Board to determine whether a permit should be revoked, suspended, or modified because of violations of such permit may be initiated by the Director of the Environmental Department by filing a written Statement of Charges with the Board that specifically sets forth the acts, violations, or omissions that the person(s) is charged with, and specifying those parts of the permit conditions that are alleged to have been violated. The Statement of Charges and all accompanying documents shall forthwith thereafter be delivered via certified mail. If contact cannot be made then the documents will be hand-delivered to the permittee.

(b) Grounds for suspension, revocation, or modification. After a hearing, any permit issued by the Board may be suspended, modified, or revoked by the Board, but only for cause, including the following:

(1) Any violation of any condition or requirement contained in the permit or the Environmental Code, any rules and regulations promulgated hereunder, orders, or guidance document; or

(2) Obtaining any permit by misrepresentation or failing to fully disclose all relevant facts.

(c) Notice of Hearing. The Statement of Charges shall be accompanied by a notice advising the person(s) of a date for a hearing before the Board, which shall not be later than thirty (30) days after personal delivery of the Statement of Charges.

(d) Answer. The person(s) shall file an Answer of Defense with the Board within fourteen (14) days after service of the Statement of Charges, in which he shall admit or deny such charges, including the allegation of any defenses, mitigating circumstances, or any other objections or responses.

(e) The Hearing. Any hearing before the Board under this Chapter shall be conducted in accordance with such informal rules as may be adopted by the Board. All hearings will be of record using audio recording devices or other suitable equipment or methods.

(f) The Decision. Within fourteen (14) days after the case is submitted for decision, the Board shall issue its final decision. Cases shall be decided by a concurrence of all members of the Board. The final decision shall be in writing, filed with the Board, and shall contain findings of fact, a determination of the issues presented, a determination of whether such permit shall be revoked, suspended or modified, if applicable, and an assessment of costs and reasonable attorney's fees. A copy of the decision shall be forthwith delivered by the Director of the Environmental Department to the permittee, and to each member of the Tribal Council. Copies of the decision shall be mailed by the Board to all other parties.

(g) Judicial Review. An adverse party aggrieved by a final decision of the Board is entitled to judicial review thereof by the Tribal Court. A petition for review shall be filed in the Tribal Court within fourteen (14) days after the filing of the final decision with the Board. The Tribe, acting by the Tribal Council, shall have standing to appeal any final decision of the Board, and may likewise appeal such final decision by timely filing a petition for review within fourteen (14) days after filing of the final decision with the Board. Failure to timely file a petition for review shall be deemed a waiver of the right to appeal to the Tribal Court. A final decision is enforceable by filing a civil action in Tribal Court by the Director of the Environmental Department. The Tribal Court shall, upon the petition of an affected party, conduct a review of the record of the proceedings of the Board; it may modify or reverse a decision or action of the Board only where such action or decision is contrary to the law, is not supported by the evidence, or is clearly arbitrary and capricious. The Board, upon request of the Tribal Court, shall provide to the Tribal Court a certified copy of all pleadings, documents, records transcripts, and all other evidence that formed the basis for any action or decision for which an affected party seeks review. The filing of a petition for review shall not operate as a stay of the Board's final decision, but the Tribal Court has the authority to issue a stay upon such terms as it deems appropriate.

(h) Remedies Not Exclusive. The rights of the Tribe with respect to a person(s) under this Chapter, including the right to issue compliance orders, recover civil penalties, or civil damages for cleanup, abatement, corrective or remedial costs against a person(s), or revoke, suspend, or modify a permit, are not intended to be exclusive, and the Tribe reserves all other legal rights which it otherwise has against any permittee, including the right to seek injunctive relief under § 26-1-21 herein, or seek relief in any court of competent jurisdiction.


§ 26-1-27 Public Participation And Hearings

The Board shall allow public participation and shall hold one or more informal public hearings, including but not limited to the following matters prior to taking any formal action:

(a) The issuance, modification, or revocation of any rules or regulations under the Environmental Code, including any guidance documents, as proposed by the Director of the Environmental Department;

(b) The issuance of appropriate permits;

(c) The assessment of any corrective measures and selection of remedies which may be necessary;

(d) The approval of any settlement of any claim against any permittee under the Environmental Code; and

(e) Any other matters which the Board deems appropriate for public participation and review, or which may be required under Title 40 and related Federal Environmental Criteria, or the Environmental Code.

Any official records, reports, rules, forms, or information shall be made available to the public for inspection, provided that information that is claimed to be confidential business information, and which the Director of the Environmental Department, acting reasonably, agrees is confidential business information, shall not be made available to the public. Requests for permission to inspect such records should be made to the Board. Cost of providing copies will be the responsibility of the person(s) requesting the copies.


§ 26-1-28 Right To Appear

In any administrative hearing before the Board authorized under the Environmental Code, any person(s) shall be allowed to intervene under the same conditions as they are allowed to appear and be heard by the Board.


§ 26-1-29 Severability

If any provisions of the Environmental Code, or any application of its provisions to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remaining provisions of the Environmental Code, shall not be affected thereby.


§ 26-2 SOLID WASTE MANAGEMENT PROGRAM


§ 26-2-1 Solid Waste Management On The Reservation

The Tribe desires to manage the disposal of solid waste on the Reservation by creating a Solid Waste Management Program, which shall be a part of the tribe's Environmental Program.


§ 26-2-2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly states otherwise:

Approved EPA Disposal Program. "Approved EPA Solid Waste Disposal Program" means a Tribal municipal solid waste landfill disposal (program, including a system of prior approval and permit conditions, that has been determined to be adequate by EPA under 40 CFR Part 239 (State and Tribal Implementation Rule), for the regulation of solid waste as required under 40 CFR Part 258 (Criteria for Municipal Solid Waste Landfills). EPA approval of a tribe's solid waste disposal program, allows a Tribe the flexibility to approve alternate criteria for the design and regulation of municipal solid waste landfills (MSWLFs).

Closure. "Closure" means the termination of the receiving, handling, recycling, treatment, composting, or disposal of solid waste at a solid waste facility, and includes all operations necessary to prepare the facility for post-closure maintenance.

Collection. "Collection" means the act of collecting solid waste or hazardous waste at the place of generation by an approved collection agent and does not mean removal.

Cover Material. "Cover material" means soil or other material suitable for use in covering compacted solid waste in a sanitary landfill. A material is suitable for use as a cover material if, when properly used, it will prevent:

(a) The propagation, harborage, or attraction of vectors;

(b) The progress of fires;

(c) The escape of odor;

(d) Excess infiltration of surface water runoff; and

(e) Erosion.

Daily Cover "Daily cover" means cover material spread and compacted on the entire surface of the active face of a sanitary landfill at the end of each operating day. 40 CFR Part 258.21 requires that solid waste must be covered with six inches of earthen material at the end of each operating day.

Disposal. "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including surface waters or groundwaters.

Facility. "Facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of solid waste.

Fault. "Fault" means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side.

Financial Assurance. "Financial assurance" means a trust fund or other equivalent acceptable financial arrangement to provide the financial assurances required for meeting the costs of closure, post-closure, and corrective action, if applicable.

Floodplain. "Floodplain" means land that would be inundated with flood water as a result of the occurrence of a 100-year flood.

Groundwater "Groundwater" means water below the land surface in a zone of saturation.

Hazardous Waste. "Hazardous waste" means any waste substance, material, smoke, gas, particulate matter, or combination thereof that:

(a) Because of its quantity, concentration, or physical, chemical, or infectious characteristics, may either cause or significantly contribute to an increase in mortality or serious irreversible or incapacitating illness, or pose a substantial present or potential hazard to human health, living organisms, or the environment when improperly handled, treated, stored, transported, or disposed of;

(b) Is specifically defined to be hazardous or toxic by the Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or the Resource Conservation and Recovery Act of 1976, as either act may be amended from time to time, and by any regulations promulgated thereunder, including but not limited to any substance, material, smoke, gas, particulate matter, or combination thereof containing asbestos, petroleum or its byproducts, or polychlorinated biphenyls ("PCBs"); or

(c) Is hazardous, toxic, ignitable, reactive, or corrosive, and that is defined and regulated as such by the Tribe or the United States of America.

Household Hazardous Waste. "Household hazardous waste" means hazardous waste generated and discarded by households.

Infectious Waste. "Infectious waste" means:

(a) Laboratory wastes, including but not limited to cultures of etiologic agents, which pose a substantial threat to health due to their volume and virulence.

(b) Pathologic specimens, including but not limited to human or animal tissues, blood elements, excreta, and secretions that contain etiologic agents, and attendant disposable fomites.

(c) Surgical specimens, including but not limited to human or animal parts and tissues removed surgically, or at autopsy, which in the opinion of the attending physician or veterinarian, contain etiologic agents and attendant disposable fomites.

(d) Human dialysis waste materials, including but not limited to arterial lines and dialysate membranes.

(e) Carcasses of animals infected with etiologic agents that may present a substantial hazard to public health if improperly managed.

(f) Equipment, instruments, utensils, or any other material that is likely to transmit etiologic agents.

(g) Any other material that is likely to transmit etiologic agents, or presents a significant danger of infection, because it is contaminated with, or may reasonably be expected to be contaminated with, etiologic agents.

Liquid Waste "Liquid waste" means any waste material which contains free liquid that is defined by Method 9095 (Paint Filter Liquids Test), as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Pub. No. SW-846).

Municipal Solid Waste Landfill Unit or MSWLF. "Municipal solid waste landfill unit" or "MSWLF" means a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined under 40 CFR Part 257. A MSWLF unit also may receive, as authorized under the SWDA, other types of RCRA Subtitle D wastes, such as, commercial solid waste, nonhazardous sludge, and industrial solid waste. The Environmental Code, however, prohibits the disposal of certain solid wastes that would otherwise be permitted under the SWDA, such as, the conditionally exempt small quantity hazardous generator waste. A MSWLF may be publicly or privately owned. A MSWLF unit may be a new unit, an existing unit or a lateral expansion. A lateral expansion is the horizontal expansion of the waste boundary of an existing unit. A MSWLF must comply with all of the criteria under the Environmental Code.

Nuisance. "Nuisance" means a condition that occurs as a result of the handling, treatment, composting, or disposal of solid waste, which condition (1) is injurious to human health or is indecent or offensive to the senses and interferes with the comfortable enjoyment of life or property, and (2) affects an entire community or neighborhood or any considerable number of persons.

100-Year Flood. "100-year flood" means a flood that has a one percent chance of being equaled or exceeded or greater chance of recurring in a one-year period based on criteria established by the Director of the Environmental Department.

Open Burning. "Open burning" means the combustion of solid waste without:

(a) Control of combustion air to maintain adequate temperature for efficient combustion;

(b) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

(c) Control of the emission of the combustion products.

Open Dump. "Open dump" means any facility or site on the Reservation where solid waste has been disposed of, which is not a sanitary landfill authorized under the Environmental Code under 40 CFR Parts 257 or 258.

Operator. "Operator" means the person(s) responsible for the overall operation of a MSWLF facility or part of a MSWLF facility.

Owner. "Owner" means the person(s) who owns a MSWLF facility or part of a facility.

40 CFR Part 258 Criteria. "40 CFR Part 258 Criteria" are the environmental criteria contained in 40 CFR Part 258 (Criteria for Municipal Solid Waste Landfills) for the location, operation, design, groundwater monitoring, corrective action, closure, post-closure care, and financial assurance requirements for MSWLFs. These are environmental standards mandated by the federal government.

Pollution. "Pollution" means the unauthorized disposal of any solid waste or hazardous waste into the air, land, surface water or groundwater.

Post-Closure Care. "Post-closure care" means all activities undertaken at a closed MSWLF to maintain the integrity of containment features and to monitor compliance with applicable performance standards as required under Subpart F of 40 CFR 4 Part 258.

Recycling. "Recycling" means the process of sorting, cleansing, treating, and reconstituting solid waste or other discarded material in order to prepare the altered form for use.

Regulated Hazardous Waste "Regulated hazardous waste" under the SWDA means a solid waste that is a hazardous waste, as defined in 40 CFR Part 261 (Identification and Listing of Hazardous Waste), that is not excluded from regulation as a hazardous waste under 40 CFR Part 261.4(b) (Solid Wastes which are not Hazardous Wastes), or was not generated by a conditionally exempt small quantity generator as defined in 40 CFR Part 261.5 (Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators). Regulated hazardous waste is not allowed to be disposed of at MSWLFs under the SWDA. The Environmental Code provides that conditionally exempt small quantity generator hazardous waste is not allowed to be disposed of on the Reservation, even though such waste is not regulated hazardous waste. This is a more stringent environmental standard than is required under the 40 CFR Part 258 Criteria.

Removal. "Removal" means the act of taking solid waste or hazardous waste from the place of generation either by an approved collection agency or by the owner of the solid waste or hazardous waste.

Run-off. "Run-off" means rainwater, leachate, or other liquid that drains over land from any part of a MSWLF.

Run-on. "Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a MSWLF.

Sewage Sludge "Sewage sludge" means any residue, excluding grit or screenings, removed from wastewater, whether in a dry, semi-dry, or liquid form from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility, exclusive of the treated effluent from a wastewater treatment plant.

Solid Waste. "Solid waste" means any garbage, refuse, or sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under Title IV of the Clean Water Act (33 USC 1342), or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).

SWDA. "SWDA" means the Federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and the 1984 Hazardous and Solid Waste Amendments ("HSWA") to RCRA, and more particularly, Subtitle D State or Regional Solid Waste Plans (42 USC 6941-6949(a)), which requires that the EPA promulgate criteria for MSWLFs, and which prohibits disposal of solid waste at landfills which do not satisfy such criteria. The 40 CFR Part 258 regulations contain the criteria for MSWLFs, and become generally effective on October 9, 1993, although there are other effective dates under 40 CFR Part 258.

Treatment. "Treatment," when used in connection with hazardous waste, means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amendable for recovery, amendable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous.

tribe's Solid Waste Management Program. "tribe's Solid Waste Management Program" means all the authorities, activities and procedures under the Solid Waste Program, the tribe's Waste Management Plan, and any other Tribal laws or regulations that comprise the tribe's system of permits; and prior approval and conditions for regulating the collection, handling, transportation, and disposal, treatment and storage of solid waste.

Vector. "Vector" means any insect, arthropod, rodent, or other animal capable of transmitting a pathogen from one organism to another, or of disrupting the normal enjoyment of life by adversely affecting the public health and well-being.


§ 26-2-3 The tribe's Solid Waste Policies

The Tribe and certain Federal agencies may be required by federal law to comply with the disposal of solid wastes on the Reservation under the Federal Solid Waste Disposal Act (herein "the SWDA") (42 USC 6901 et seq.), as amended by the Resource Conservation and Recovery Act (herein "RCRA") ; and more specifically, Subtitle D, (State or Regional Solid Waste Plans) (42 USC 6941-6949 (a)).

These federal laws also include the various solid waste regulations promulgated hereunder by the EPA, including the comprehensive final rules and regulations contained in 40 CFR Part 258, (Criteria for Municipal Solid Waste Landfills) (herein "the 40 CFR Part 258 Criteria"), for the location, design, operation, closure, post-closure, and financial assurance requirements for MSWLFs.

The Tribe intends by the adoption of the Environmental Code, to comply with the SWDA, and the 40 CFR Part 258 Criteria. Once the tribe's Solid Waste Management Program (herein "the Solid Waste Program") is adopted by the Tribal Council, the Director of the tribe's Environmental Department shall apply to the Regional Administrator, EPA Region IV, through the Regional Tribal Program Coordinator, for its approval of the tribe's Solid Waste Program, as regulated herein, pursuant to the requirements of 40 CFR Part 239 (State and Tribal Implementation Rule).

Upon EPA approval of the tribe's Solid Waste Program under 40 CFR Part 239, the Tribe is entitled to treatment as a State in complying with the 40 CFR Part 258 Criteria. The Environmental Code prohibits the disposal of any solid waste as defined in this chapter except-in permitted MSWLFs which comply with the 40 CFR Part 258 Criteria. Disposal of solid waste at "open dumps" is prohibited under the Environmental Code.


§ 26-2-4 The tribe's Sovereign Immunity Under The Solid Waste Program

Pursuant to § 26-1-5 herein, no part of the tribe's Solid Waste Program shall be construed as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed by the Tribe, or a consent by the Tribe to jurisdiction over or suit against it. The Tribe reserves the right to contest the jurisdiction of any court in any suit filed against it under 42 USC 6972 (Citizen Suits), except only as such jurisdiction may be expressly waived by the Tribe in such suit.


§ 26-2-5 Purposes Of The Solid Waste Program

The purposes of the tribe's Solid Waste Program are to implement, regulate, and enforce environmental standards and criteria, orders and permit conditions, and laws and regulations under the Environmental Code for the sanitary storage, collection, transportation, and disposal of all solid waste on or within the Reservation.


§ 26-2-6 The Environmental Protection Board Shall Develop The tribe's Solid Waste Program

The Board, with the assistance of the Director of the Environmental Department, shall develop the tribe's Solid Waste Program. This program shall include the following items: (1) identification of, and a plan for closing all "open dumps" within the Reservation, in accordance with the SWDA and 40 CFR Part 258 Criteria, and (2) the formulation of Tribal policies for all solid waste collection, transportation, handling, treatment and disposal on or off the Reservation. If feasible, the Solid Waste Program shall include a resource recovery program for the recycling of solid wastes, and a program for the disposal of household hazardous wastes at facilities other than in an approved and permitted MSWLF on the Reservation, if any MSWLFs are to be established within the Reservation.

The Solid Waste Program shall also include:

(a) An estimation of the volume and composition of all solid waste generated on the Reservation, and an estimation of the volume and composition of solid waste from sources outside the Reservation that may be disposed of in any MSWLF on the Reservation pursuant to any intergovernmental agreement that the Tribal Council may authorize;

(b) An identification of the responsibilities of other Tribal agencies and entities involved in the implementation of the tribe's solid waste disposal program; and the distribution of federal or state funds to the Tribal authorities responsible for development and implementation of the tribe's Solid Waste Program;

(c) A review of the Tribal regulatory systems which are necessary to implement the tribe's Solid Waste Program, and enforce the Environmental Code, and rules or regulations promulgated hereunder;

(d) A review of plans for closing all "open dumps" on the Reservation, or the removal of solid waste disposed of at "open dumps" on the Reservation to duly authorized facilities off the Reservation, and an assessment of such costs;

(e) A review of 40 CFR Part 257 (Criteria for Classification of Solid Waste Disposal Facilities and Practices) and the authorization of the disposal of any solid waste on the Reservation under the Part 257 Criteria under rules and regulations to be adopted by the Board; and

(f) A study of how solid waste will be disposed of on or off the Reservation, in compliance with the 40 CFR Part 258 Criteria, including an assessment of costs for constructing and operating MSWLFs, or transfer stations on the Reservation, and an assessment of costs for the collection and transportation of solid waste on or off the Reservation.

The Solid Waste Program may also include any other matters relevant to the tribe's Solid Waste Program.

The Board shall submit the Solid Waste Program to the Council, in writing, for its review, any modifications, if necessary, and for the Council's final approval. The Board shall allow public participation via informal public hearings prior to issuance of or modification or resignation of rules or regulations under the Solid Waste Program.


§ 26-2-7 The Environmental Protection Board Shall Issue Permits For The Location, Construction, Design,Operation, Closure Post-Closure, And Financial Assurance Requirements For MSWLFs And For The Collection And Transportation Of Solid Waste

The Board shall have the authority and responsibility to issue permits for the location, design, construction, operation, closure, post-closure, and financial assurance requirements for any MSWLFs on the Reservation. The Board shall also have the authority and responsibility to issue permits for the collection and transportation of solid waste on the Reservation.

Tribally chartered corporations or agencies, private enterprises, or any other persons are required to obtain a permit from the Board to either: (1) collect and transport solid waste, or (2) to construct or operate a municipal solid waste landfill(s) on or within the Reservation. Any permittee shall be required to comply with the Environmental Code, any rule or regulation promulgated hereunder, all Tribal environmental standards and criteria, all relevant guidance documents, all permit conditions, all orders issued by the Board or Environmental Department under authority of the Environmental Code, and all applicable federal or Tribal laws, environmental in nature or otherwise.

No Tribally chartered corporation or agency, private enterprise, or person may collect or transport solid waste without first having obtained from the Board a solid waste collection and transportation permit, or construct or operate a MSWLF on or within the Reservation without first having obtained from the Board a solid waste facility construction and/or operation permit.

Any qualified tribally chartered corporation, agency, private enterprise, or person may file an application with the Board for a permit to collect and transport solid waste, or to construct and/or operate a MSWLF on the Reservation.


§ 26-2-8 The Environmental Protection Board Shall Promulgate Rules and Regulations, And Issue Solid Waste Guidance Documents

The Board shall identify and shall issue rules, regulations, and guidance documents pertaining to the handling of solid waste within the Reservation. The Board shall adopt rules and regulations for landfills on the Reservation consistent with 40 CFR Part 258 Criteria; for the collection and transportation of solid waste; and other rules and regulations as required herein. The Board, with the assistance of the Director of the Environmental Department, may also approve and issue "Guidance Documents" as part of the tribe's Solid Waste Program, which shall contain specific technical or scientific criteria for implementing the location, construction, design, operation, closure, or post-closure requirements for MSWLFs. Guidance documents may supplement the 40 CFR Part 258 Criteria, but any criteria set forth in any guidance document shall not be in conflict with any 40 CFR Part 258 Criteria, or contain any criteria which are less stringent than the 40 CFR Part 258 Criteria. Guidance documents issued by the Board, however, may provide more stringent criteria for MSWLFs than are required by the 40 CFR Part 258 Criteria.


§ 26-2-9 The Environmental Department Is The Lead Tribal Agency For All Solid Waste Matters

The Environmental Department is hereby designated as the Lead Tribal Agency for all purposes under 40 CFR Part 239 and 40 CFR Part 258. The Environmental Department shall communicate with EPA regarding the tribe's Solid Waste Program; prepare the application for EPA approval of the tribe's Solid Waste Program under the 40 CFR Part 258 Criteria, and make reports to the EPA.


§ 26-2-10 Duties Of The Director Of The Environmental Department Regarding the tribe's Solid Waste Program

The duties of the Director of the Environmental Department with regard to the tribe's Solid Waste Program are as stated in the job description provided by the tribe's Human Resources Department.


§ 26-2-11 Prohibition Of Dumping Of Solid Waste

In compliance with the SWDA, the Board shall identify and take whatever action is necessary to close in a timely manner all "open dumps" on the Reservation as required by the 40 CFR Part 258 Criteria. Upon approval of the Environmental Code by the Tribal Council,any landfill or site where solid waste may have previously been disposed at anywhere on or within the Reservation is deemed to be permanently closed, unless before then:

(a) Such site is specifically determined by the Environmental Protection Board to be in compliance with 40 CFR Part 258; and

(b) Such site is specifically determined by the Environmental Protection Board to be a MSWLF where solid waste may be disposed of under 40 CFR Part 258; or

(c) Such site is specifically determined by the Environmental Protection Board to be a landfill where solid waste may be disposed of under 40 CFR Part 257.

Any landfill site on the Reservation which has not been determined by the Board to be a MSWLF, or a landfill authorized to accept waste under 40 CFR Part 257, upon approval of the Environmental Code by the Tribal Council, is considered to be an open dump site.

It is expressly prohibited and shall be unlawful, for any person to dispose of, or dump, scatter, or place, or cause to be dumped, scattered or placed, any solid waste as defined under the Environmental Code, including any hazardous waste as defined under the Code, at or near an open dump site on or within the Reservation, or on any other land on or within the Reservation, except as disposal may be permitted under the Code at a duly authorized and designated MSWLF or 40 CFR Part 257 landfill.


§ 26-2-12 Prohibited Materials

The following solid waste materials shall never be disposed of or accepted anywhere on the Reservation, to include any MSWLF on the Reservation under any conditions:

(a) Radioactive wastes;

(b) All regulated hazardous wastes and unregulated small quantity generator hazardous wastes as defined herein;

(c) Infectious biomedical wastes, which includes human tissue or human anatomical remains;

(d) Animal carcasses or bedding exposed to infective agents;

(e) Sharps, needles and lancets which have not been contained for disposal in leak-proof, rigid, puncture-resistant containers such as cartons or metal cans which are taped closed or tightly lidded to preclude loss of contents under severe compaction conditions;

(f) Bulk quantities of infectious-type wastes including blood, blood products and body fluids;

(g) Any demolition or construction wastes containing friable asbestos waste from building demolition or cleaning, and any friable asbestos materials;

(h) Sewage or sewage sludge wastes;

(i) Bulk liquids of any kind;

(j) PCBs;

(k) Car batteries;

(l) Used oil;

(m) 55-gallon drums;

(n) Explosives;

(o) Tires; or

(p) Oil or gas exploration wastes.

The Board may prohibit the disposal of other solid wastes at MSWLFs on the Reservation as it deems necessary in its discretion, under rules and regulations to be adopted by the Board. The Board may issue rules and regulations governing the disposal or prohibition of disposal of other solid wastes not listed herein, including but not limited to, ashes and powders, and mineral wastes and soils.


§ 26-2-13 Prohibition of Regulated Or Conditionally Exempt Small Quantity Generator Hazardous Waste

The receiving, accepting, handling, treatment, storage, processing, dumping or disposal of regulated hazardous waste, as defined under this Environmental Code, anywhere on or within the Reservation is expressly prohibited and unlawful. Transportation of any regulated hazardous waste on or within the Reservation must be in full compliance with federal law, or is otherwise prohibited.

The collection, storage, transfer, transportation, and disposal off the Reservation of conditionally exempt small quantity generator hazardous waste generated on the Reservation, is subject to such rules and regulations as the Board may issue in compliance with federal law.

These prohibitions do not apply to household hazardous waste which is not a regulated hazardous waste, and which may lawfully be disposed of at a MSWLF on the Reservation.


§ 26-2-14 Prohibition Of Burning Of Solid Or Hazardous Waste

Upon approval of the Environmental Code by the Tribal Council, it is expressly prohibited, and shall be unlawful, for any person to burn any solid or hazardous waste at a MSWLF, or anywhere else on or within the Reservation, except as the Board may specifically authorize or permit by rule or regulation and which is not prohibited by federal law. The Board may authorize by rule and regulation, the infrequent open burning of agricultural wastes, silvicultural wastes, land cleaning debris, diseased trees, or debris from emergency cleanup operations at a MSWLF.


§ 26-2-15 Recycling

Tribal policy shall be that solid wastes which are reusable shall be recycled if economically feasible. The Board shall explore a program for the recycling of solid wastes on the Reservation, as part of the tribe's Solid Waste Program. The Board shall conduct an analysis of technological and economically feasible systems for the collection, separation, containerization, and marketing of solid wastes that are recyclable. The study shall identify potential markets for recyclable solid wastes. If recycling is economically feasible, the Board may issue rules and regulations for the recycling of solid wastes on the Reservation.


§ 26-2-16 Household Hazardous Wastes

The Board shall include a study regarding the disposal of household hazardous wastes on the Reservation, as part of the tribe's Solid Waste Program. Such study shall include an analysis of the economic feasibility of the separate collection of household hazardous wastes, and disposal of household hazardous wastes at duly authorized facilities other than at a MSWLF on the Reservation. If economically feasible, the Board may issue rules and regulations for the collection and lawful disposal of household hazardous wastes generated on the Reservation other than at a MSWLF on the Reservation.


§ 26-2-17 Application For Permit To Construct And/Or Operate A MWSLF on Tribal Property

Any application for a permit to construct and/or operate a MSWLF must contain all of the information and data that are necessary to demonstrate that the permittee will comply with all of the provisions of the Environmental Code; the SWDA; 40 CFR Part 258; and all solid waste rules or regulations, technical standards or criteria, or applicable guidance documents. In addition, the Director of the Environmental Department may require that a permittee acquire or perform such additional information, tests or studies, as he deems reasonably necessary to demonstrate compliance with the Code.

The permit application to construct and/or operate a MSWLF must contain the following minimum information:

(a) A legal description and area map of the site of the proposed facility.

(b) A title report showing ownership of the site of the proposed facility, and all encumbrances, covenants, conditions, restrictions, reservations to title and easements and rights of way on or across the site.

(c) Proof that the applicant is the owner or holds an interest or lease in the proposed site; that all taxes, fees and lease payments are current; and if not, that the applicant has a notarized consent from the owner approving the use of the land for purposes set forth in the application.

(d) A general design plan for the facility certified by a professional engineer.

(e) A map and aerial photograph of the area to be used for the MSWLF showing all land use and political jurisdiction within five miles of the landfill site. The map and aerial photograph shall be of sufficient scale to show all homes, airports, wells, water ways,topography, roads, and other objects that may be affected.

(f) A report indicating the following:

(1) The population and area to be served by the proposed site and life expectancy of the facility;

(2) The geological formation, aquifer characteristics, and groundwater elevations below the lowest elevation of the site, with such data obtained by soil boring and other appropriate means;

(3) The source and characteristics of cover material to be used;

(4) Reliable data on existing groundwater quality within 2,000 feet of the site;

(5) Topography and drainage patterns of the site; and

(6) Location of the 100-year flood plain as approved by the Director of the Environmental Department in relation to the site.

(g) A design and plan of operations for the facility, certified by a professional engineer, which identifies how the landfill will meet the standards and criteria of the Environmental Code and 40 CFR Part 258 for the location, design, performance, operating standards, groundwater monitoring, closure, post-closure, and financial assurance requirements. The design shall also include one or more topographic maps with contour intervals. The maps should show the proposed fill area, borrow areas, access roads, drainage areas, fencing, equipment and buildings, and the groundwater monitoring systems.

(h) A financial statement, estimating the cost of construction, operation, closure and post-closure of the site, explaining the applicant's financial condition and the applicant's ability to fund the continued operation, closure, and post-closure of the site in compliance with the Environmental Code and the financial assurance requirements of 40 CFR Part 258.

(i) An identification statement certified as to its truth and accuracy, signed by the applicant, and notarized, containing the following information:

(1) Name, address, social security number and phone number of all persons owning or holding an interest in the applicant of 5% or more;

(2) Name, address, social security number, and phone number of all officers, directors, or partners;

(3) A statement that no officer, director, partner or holder of an interest of 5% or more, has ever been convicted of a felony, and that no felony charges are currently pending; and

(4) A statement which discloses in detail any charge, complaint, fine, order, decree, statement, or finding of "no contest" for violation of any Tribal, federal, state, county or municipal environmental or health law, regulation, permit or condition against any officer, director, partner or holder of an interest of 5% or more within the past five (5) years, including the jurisdiction, disposition, and name, address and phone number of the person who filed the original charge or complaint, and the name of the Director, Board, Administrative Body, Judge, Justice of the Peace, Magistrate or Arbitrator who levied or entered any fine, order, penalty, decree, statement or finding.

(j) A current financial statement of the applicant's net worth, including a description of major assets and liabilities, and any other financial information requested by the Board.

(k) A description of any judgments rendered against any officer, director, partner or holder of an interest of 5% or more in the applicant, for five (5) years preceding the date of the application.

(1) A description of any bankruptcy or insolvency proceedings instituted by any officer, director, partner, or holder of an interest of 5% or more in the applicant, for five (5) years preceding the date of the application.

The Board shall not issue a solid waste construction and/or operation facility permit unless the Tribe has issued a land use permit, or lease, authorizing the operation of the MSWLF facility.

The Board may issue a solid waste construction and/or operation facility permit only if it finds, on the basis of information contained in the application and otherwise available to it, that the applicant will comply with the Environmental Code; the 40 CFR Part 258 Criteria; and all rules or regulations, technical standards and criteria, guidance documents, and permit conditions.

The Board must also find that the applicant has the financial and technical ability to construct and/or operate, close, and post-close the MSWLF as required by the Environmental Code.

The burden of proof shall rest on the applicant to demonstrate compliance with all Tribal solid waste guidelines and requirements. In issuing any permit, the Board may impose permit conditions which are more stringent than provided under the Environmental Code, if such are reasonably necessary. The Board shall not issue a solid waste construction and/or operation facility permit unless it is convinced that the primary consideration of the permittee is to prevent environmental damage and protect the public health. The long-term protection of the tribe's public health, environment, and natural resources, shall be a critical consideration for the Board's issuance or denial of a permit.

A solid waste operation facility permit shall be valid for the operation, closure, and post-closure period designated and required for such MSWLF, but such permit is subject to revocation, suspension, or modification as provided herein. Any conditions imposed on any solid waste construction and/or operation facility permit issued by the Board may only be modified after a public hearing which is duly noticed regarding modification of such permit.

No solid waste construction and/or operation facility permit shall be issued unless there has been a public hearing conducted by the Board, at which the applicant and all interested persons shall have an opportunity to present relevant evidence and be heard on whether the application should be granted, or whether there are any special conditions which should be included in such permit.

Each application shall be signed and notarized under oath in a form approved by the Board and shall be accompanied by a reasonable filing fee established by the Board to reflect the tribe's costs of processing the application or preparing an environmental assessment, the public notice and hearing, and the costs of technical and legal consultants to review the application, prepare an environmental assessment, attend the hearing, and to prepare the permit, exhibits, and guidance documents.

In order to recover operating costs, the Tribe may impose reasonable fees on each permittee who constructs or operates a MSWLF, or collects and transports solid waste. Any fees to be imposed by the Tribe shall be specifically referred to in each permit. In addition, the Tribe may impose taxes on each permittee who operates a MSWLF, or collects and transports solid waste. The payment of such fees or taxes shall be a condition of maintaining such permit.


§ 26-2-18 Construction And Operation of MWSLFs on Tribal Property

Subparts A through G of 40 CFR Part 258 establish the minimum federal criteria for MSWLFs under RCRA, as amended, which are incorporated by reference herein. The Board, in its discretion, may impose more stringent requirements than those specified in the Federal criteria. Specific criteria applicable to the construction and operation of any Tribal MWSLF include:

(a) Criteria under Subpart B of 40 CFR Part 258, which establishes location restrictions for MWSLFs, to include:

(1) The airport safety criteria as specified in 40 CFR Part 258.10;

(2) The floodplain criteria as specified in 40 CFR Part 258.11;

(3) The wetlands criteria as specified in 40 CFR Part 258.12;

(4) The fault area criteria as specified in 40 CFR Part 258.13;

(5) The seismic impact zone criteria as specified in 40 CFR Part 258.14; and

(6) The unstable area criteria as specified in 40 CFR Part 258.15.

(b) Criteria under Subpart C of 40 CFR Part 258, which establishes operating requirements for MWSLFs,to include:

(1) Establishing procedures for excluding the receipt of regulated hazardous waste as specified in 40 CFR Part 258.20;

(2) Daily cover material requirements as specified in 40 CFR Part 258.21;

(3) Disease vector control procedures as specified in 40 CFR Part 258.22;

(4) Explosive gases control requirements as specified in 40 CFR Part 258.23;

(5) Air quality criteria requirements as specified in 40 CFR Part 258.24;

(6) Public access control requirements as specified in 40 CFR Part 258.25;

(7) Storm water run-on/run-off control system requirements as specified in 40 CFR Part 258.26;

(8) Surface water discharge control requirements as specified in 40 CFR Part 258.27;

(9) Bulk or noncontainerized liquid waste restriction requirements as specified in 40 CFR Part 258.28; and

(10) Record keeping requirements as specified in 40 CFR Part 258.29.

(c) Criteria under Subpart D of 40 CFR Part 258, which establishes design criteria for MWSLFs.

(d) Criteria under Subpart E of 40 CFR Part 258, which establishes requirements for groundwater monitoring and corrective action at MWSLFs, to include:

(1) Establishing a groundwater monitoring system as specified in 40 CFR Part 258.51;

(2) Groundwater sampling and analysis requirements as specified in 40 CFR Part 258.53;

(3) Constituent detection monitoring requirements as specified in 40 CFR Part 258.54, and as listed in Appendix I to Part 258 (Constituents for Detection Monitoring);

(4) Assessment monitoring as specified in 40 CFR Part 258.55;

(5) Corrective measures assessment procedures as specified in 40 CFR Part 258.56;

(6) Selection of remedy procedures as specified in 40 CFR Part 258.57; and

(7) Implementation of the corrective action program as specified in 40 CFR Part 258.58.

(e) Criteria under Subpart F of 40 CFR Part 258, which establishes closure criteria and post-closure care requirements for MSWLFs.

(f) Criteria under Subpart G of 40 CFR Part 258, which establishes financial assurance criteria for MWSLFs, to include:

(1) Financial assurance for closure as specified in 40 CFR Part 258.71;

(2) Financial assurance for post-closure care as specified in 40 CFR Part 258.72;

(3) Financial assurance for corrective action as specified in 40 CFR Part 258.73; and

(4) Allowable mechanisms for demonstrating financial assurance as specified in 40 CFR Part 258.74.


§ 26-3 LAND RESOURCE MANAGEMENT PROGRAM


§ 26-3-1 Land Resource Management On The Reservation

The Tribe desires to manage all lands on or within the Reservation in such a manner that protects the environmental integrity of the land resources found on or within the Reservation.


§26-3-2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly states otherwise:

Agricultural Aircraft Operation. "Agricultural aircraft operation" means the operation of an aircraft for the purpose of dispensing any pesticide directly affecting agriculture, horticulture, forest preservation or any other pest control operation.

Animal Concentration Area. "Animal concentration area" means barnyards, feedlots, or other similar animal confinement areas.

Application Site. "Application site" means the specific location where a pesticide is applied.

Best Management Practices or BMPs. "Best management practices" or "BMPs" are practices or combinations thereof which provide effective and practicable means for conserving land, soil, and water resources. BMPs include structural, managerial, or vegetative practices which are used to protect surface water and groundwater quality, and prevent unnecessary soil erosion.

Drift. "Drift" is the airborne movement of pesticides resulting from the aerial application of pesticides such as to carry the pesticides beyond the target area.

Erosion. "Erosion" is the process by which the surface of the land is worn away by the action of wind, water; or rain.

FAR 137. "FAR 137" is the Federal Aviation Regulations, Volume VII, Part 137, as amended, relating to agricultural aircraft operations.

Groundwater. "Groundwater" means water beneath the surface of the ground whether or not flowing through known and definite channels.

Label. "Label" means the written, printed, or graphic matter on, or attached to, the pesticide, or device or any of its containers or wrappers.

Manure Storage Facility "Manure storage facility" means a permanent storage facility used for the primary purpose of containing manure.

Mineral. "Mineral" means clay, stone, sand, gravel, metalliferous and non-metalliferous ores, and any other solid material or substances of commercial value excavated in solid form from natural deposits on or in the earth.

Nutrient. "Nutrient" means a substance recognized as a plant nutrient element or compound. The term includes but is not limited to manure, compost as a fertilizer, commercially manufactured fertilizers, sewage sludge, or combinations thereof.

Pesticide. "Pesticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.

Pest Control. "Pest control" means engaging in or using a pesticide or device for identification, control, eradication, mitigation, detection, inspection, or prevention of a pest in, on, around and house, building, water, air, land, plant, structure, or animal.

Restricted Use Pesticide. "Restricted use pesticide" means a pesticide classified for restricted use under 7 USC 136 (d).

Surface Mining. "Surface mining" means activities conducted on the surface of land incident to a surface mining operation conducted to recover minerals from the earth. It includes borrow pitting, streambed skimming, and segregating and stockpiling of mined materials.

Surface Water "Surface water" means water upon the surface of the earth whether contained in bounds created naturally or artificially.

Target Area. "Target area" means the intended site of an aerial application of pesticides.

Watershed. "Watershed" means the land area which contributes to the flow of water into a receiving body of water.

Wetlands. "Wetlands" means those areas which are defined in 40 CFR Part 232.2, as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.


§ 26-3-3 The tribe's Sovereign Immunity Under The Land Resource Management Program

Pursuant to § 26-1-5 herein, no part of the tribe's Land Management Program (herein "the Land Management Program") shall be construed as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed by the Tribe, or a consent by the Tribe to jurisdiction or suit against it. The Tribe reserves the right to contest the jurisdiction of any court in any suit filed against it, except only as such jurisdiction may be expressly waived by the Tribe in such suit.


§ 2
6-3-4 Purposes Of The Land Management Program

The purposes of the tribe's Land Management Program are to implement, regulate, and enforce environmental standards and criteria, orders and permit conditions, and laws and regulations under the Environmental Code for the management of land resources on or within the Reservation.

Under the tribe's Land Management Program, the Tribe, other persons, and certain federal agencies may be required by federal law to comply with the following federal laws and statutes and regulations thereunder:

(a) The Best Management Practices Program (40 CFR 125.104);

(b) The Federal Insecticide, Fungicide and Rodenticide Act (7 USC 136 et seq.);

(c) The Endangered Species Act (16 USC 1531 et seq.);

(d) The Soil and Water Resources Conservation Act of 1977 (16 USC 2001 et seq.); and

(e) The Surface Mining Control and Reclamation Act of 1977 (30 USC 1201 et seq.), in particular, 30 USC 1300, which pertains to regulation of surface mining on Indian Lands.


§ 26-3-5 The Environmental Protection Board Shall Develop The tribe's Land Management Program

The Board, with the assistance of the Director of the Environmental Department, shall develop the tribe's Land Management Program. This program shall include:

(a) Best Management Practices (herein, "BMPs") for Tribe owned agricultural lands, non-cultivated open spaces, and forested lands, to include environmentally sensitive watersheds;

(b) Pesticide management, to include aerial spraying;

(c) Management of agricultural animal wastes;

(d) Fertilizer and nutrient management;

(e) Forest management on Tribal lands; and

(f) Mineral resource management on Tribal lands.

The Land Management Program may also include any areas of special Tribal concern or other matters which are relevant to the effective management of Tribal lands.

The Council shall review and approve the tribe's Land Management Program, and any modifications, if necessary. The Board shall allow public participation via informal public hearings prior to issuance of or modification or resignation of regulations.


§ 26-3-6 The Environmental Protection Board Shall Promulgate Rules
and Regulations, And Issue Land Management Guidance Documents

The Board shall identify and shall issue rules, regulations, and guidance documents pertaining to the management of land resources within the Reservation. The Board shall adopt rules and regulations for the tribe's Land Management Program as may be required. The Board, with the assistance of the Director of the Environmental Department, may also approve and issue "Guidance Documents" as part of the tribe's Land Management Program, which shall contain specific technical or scientific criteria for implementing the Land Management Program. Guidance documents may supplement the applicable federal criteria, but any criteria set forth in any guidance document shall not be in conflict with, or contain any criteria which are less stringent than these federal criteria.


§ 26-3-7 Duties Of The Environmental Department Under The Land Management Program

The Environmental Department is hereby designated as the Lead Tribal Agency for all matters pertaining to the environmental protection of land resources within the Reservation. The Environmental Department shall communicate with EPA as may be necessary with regards to the environmental management of the tribe's land resources.


§ 26-3-8 Duties Of The Director Of The Environmental Department Regarding the tribe's Land Management Program

The duties of the Director of the Environmental Department with regards to the tribe's Land Management Program are as stated in the job description provided by the tribe's Human Resources Department.


§ 26-3-9 Best Management Practices Within The Reservation

The Tribe intends that BMPS be utilized on all agricultural lands, non-cultivated open spaces, forested lands, and environmentally sensitive watersheds within the Reservation. BMPs include structural, managerial, or vegetative practices which are used to protect surface water and groundwater quality, and prevent unnecessary soil erosion. Practical BMPs will be used on the Reservation, to include:

(a) Agricultural lands, to include lands leased to farmers. Pursuant to 16 USC 2001 et seq. (The Soil and Water Resources Conservation Act of 1977), conservation management on Tribal agricultural lands will be responsive to the long-term protection of farmland resources. BMPs will be designed to conserve the soil and water resources of Tribe owned farmland and minimize environmental impact without sacrificing productivity.

(b) Non-cultivated open spaces. BMPs to be utilized include planting windrows, shelter belts, and natural fence rows; planting buffer strips around water bodies and wood lots, to stabilize raw or eroding soils; and managing wildlife habitat to benefit both property and wildlife.

(c) Forested lands. BMPs to be utilized include managing woodlands both for profit, and the environment, for protecting wetlands and environmentally sensitive watersheds, for reducing soil erosion and managing storm water runoff from adjacent areas, and for protecting threatened or endangered species found within the Reservation.

(d) Other BMPs as may be approved by the Board.

The Board, with input from the Environmental Director, shall issue guidance documents stipulating which BMPs are best suited for protecting the environmental integrity of Tribal land under the Land Management Program.


§ 26-3-10 Pesticide Management

The Tribe intends that pesticide use on the Reservation will conform to all applicable federal statutes and regulations, to include 7 USC 136 et seq. (The Federal Insecticide, Fungicide and Rodenticide Act) . Within the constraints of the applicable criteria, pesticides may be used for:

(a) Agricultural plant pest control;

(b) Ornamental plant and turf pest control;

(c) Aquatic pest control;

(d) Right-of-way pest control;

(e) Household and health related pest control;

(f) Wood destroying pests;

(g) Structural or soil fumigation;

(h) Public health vertebrate control; and

(i) Public health invertebrate control.

All pesticide management consultants/contractors hired to apply pesticides on or within Reservation shall be appropriately certified, licensed by a licensing agency, and insured, and shall be able to provide this information to the Tribe upon request.

Only pesticides with approved EPA registrations are authorized for use on or within the Reservation. No pesticide will be used within the Reservation in a manner not permitted by its labeling. Pesticide products classified for restricted use will only be used consistent with the terms of the restriction. Any pesticide label containing an advisory instruction pertaining to its environmental hazards shall be considered as a further restriction on this pesticide's use.

No person may use, handle, transport, store, distribute, or dispose of pesticides within the Reservation in a manner which endangers man or his environment, or in a manner which violates any applicable Tribal or federal standard or criteria.

No person may apply a pesticide if a danger exists that the pesticide will move off of the proposed application site. Particular care will be taken to ensure that no stream or other surface water body within the boundaries of the reservation will become contaminated from a pesticide labeled as toxic or harmful to aquatic life, unless the aquatic life in a stream or surface water body is the intended target of the pesticide.

A person may not apply pesticides on the property of another without first obtaining permission of the owner of said property, except in the case of easements or rights-of-way, or when done to protect the health and welfare of the public.

A person may not store, transport, or otherwise possess a pesticide in a container that is not appropriately labeled. No pesticides will be stored in containers labeled for food and drink. All used pesticide containers will be disposed of in accordance with labeling instructions and applicable Tribal and federal criteria.

All agricultural aircraft operations within the boundaries of the Reservation shall comply with all appropriate federal environmental criteria and the Federal Aviation Regulation Part 137 (Agricultural Aircraft Operations). Pilots and aerial application contractors shall use and operate, in any agricultural operation, aircraft equipped with spray or spreading equipment suited, according to its manufacturer's recommendations, for the pesticides to be applied. All aerial spray or spreading equipment shall be free of leaks and shall have a positive shutoff system to prevent leaking and dissemination of pesticides on any non-target areas over which the flight is made. Such equipment shall not allow spillage, dripping, or backflow, or create a hazard from vapors or drift. Additionally, no pesticide shall be deposited by aircraft within 300 feet of any building if the premises is occupied by people, or within 100 feet of any residence. Likewise, no pesticide shall be deposited by aircraft on the right-of-way of a public road or within 25 feet of the road, whichever is greater.

The Board, with input from the Environmental Director, shall issue guidance documents on the use of pesticides on Tribal lands under the Land Management Program.


§ 26-3-11 Management Of Agricultural Animal Wastes

Management of agricultural wastes (herein "manure management") includes manure handling, storage and spreading practices, and barnyard runoff control. An animal concentration or manure storage area is considered a pollution hazard if such will cause:

(a) A significant runoff of manure or pollutants from manure to streams or other surface water within the boundaries of the Reservation during a 25-year, 24-hour rainstorm of 4.5 to 5 inches or less;

(b) Uncontrolled seepage of pollutants into groundwater; or

(c) A violation of any Tribal or federal criteria.

Manure management on agricultural lands within the boundaries of the Reservation will be practiced to prevent a pollution hazard, and surface water or groundwater pollution under normal climatic conditions for the location. As a minimum; the following BMPs will be used to facilitate effective manure management within the boundaries of the Reservation:

(a) Appropriate steps to ensure that manure, contaminated water, or nutrients are not discharged to surface water or groundwater. If necessary, manure storage facilities will be constructed in accordance with an approved guidance document issued by the Board.

(b) Adequate collection of manure from animal concentration areas for utilization on cropland or for other acceptable uses. A guidance document will be issued by the Board specifying criteria for land application of manure on Tribal property.

(c) Temporary manure stacking, with primary containment, in areas located outside concentrated water flow areas and areas where manure application might contaminate streams or other surface water bodies, or groundwater within the boundaries of the Reservation.

(d) Other appropriate BMPs as may be approved by the Board.

The Board, with input from the Environmental Director, shall issue guidance documents on manure management on Tribal lands under the Land Management Program.


§ 26-3-12 Fertilizer And Nutrient Management

Fertilizer and nutrient management on Tribal lands used for agricultural purposes is essential for protecting the surface water and groundwater resources on the Reservation. As a minimum, the following BMPs will be used to facilitate effective fertilizer and nutrient management on or within the Reservation:

(a) Soil erosion control. Runoff and soil erosion from agricultural lands are a major cause of phosphorous pollution of surface water, as well as reduced cropland productivity through removal of fertile topsoil. Management practices designed to control runoff and soil erosion include:

(1) Establishment and maintenance of permanent perennial vegetative cover on cropland currently not in use;

(2) Conservation cropping sequence (crop rotation);

(3) Contour farming where land slopes;

(4) Strip cropping, with alternating strips of row crops;

(5) Planting ground-hugging cover crops after row crop removal to prevent soil erosion;

(6) Planting buffer strips for removing sediment and organic matter from runoff; and

(7) Mulching to prevent soil erosion.

(b) Fertilizer management. Fertilizer application should be based on research and soil sampling, taking into account the applicable nutrient requirements for crop utilization.

(c) Timing of fertilizer application. The timing of fertilizer application should coincide with expected crop uptake to reduce the opportunity for fertilizer loss from leaching and runoff.

(d) Correct fertilizer placement to improve nutrient uptake by crop plants while reducing the possibility of fertilizer runoff.

(e) Irrigation management. On fields where irrigation is used, irrigation should be scheduled to minimize leaching. The Board will issue a guidance document detailing criteria for spray irrigation on Tribal property.

The Board, with input from the Environmental Director, shall issue guidance documents on fertilizer and nutrient management on Tribal lands under the Land Management Program.


§ 2G-3-13 Forest Management On Tribal Lands

Forested lands within the Reservation will be managed to protect Tribal timber, watershed, wildlife habitat, and recreation resources. The Tribe may from time-to-time harvest commercially important tree species from forested lands, so long as BMPs are utilized that will protect wetlands and environmentally sensitive watersheds, by reducing soil erosion and managing storm water runoff into these areas. Harvesting of timber resources on Tribal lands will be managed such that no harmful effects will be realized on adjacent or nearby properties. The Tribe may also designate certain natural areas within forested zones on the Reservation which will be managed according to the need to maintain their significant ecological values. Activities which threaten to degrade these values will be prohibited. Management of surrounding lands may not adversely affect areas containing commercially significant timber or designated natural areas. Natural areas will be left undisturbed with natural succession allowed to occur. When necessary, control measures will be allowed in Tribal forested areas for purposes of: (1) insect and disease control; and (2) fire control.

No activities will be permitted in wet meadows, marshes, and other wet areas unless such activities are forest land conservation practices or fish and wildlife habitat improvement practices.

The Tribe also intends to protect ecosystems within the Reservation upon which threatened and endangered species depend, pursuant to USC 1531 et seq. (The Endangered Species Act).

The Board, with input from the Environmental Director, shall issue guidance documents concerning forest management on Tribal lands under the Land Management Program.


§ 26-3-14 Mineral Resource Management On Tribal Lands

Pursuant to 30 USC 1201 et seq. (The Surface Mining Control and Reclamation Act of 1977), surface mining operations on Tribal lands will be conducted so as not to diminish the utility of Tribal lands to be used for commercial, industrial, recreational, agricultural, and forestry purposes by causing:

(a) Erosion and landslides;

(b) Contributing to floods;

(c) Polluting streams or other surface water bodies;

(d) Destroying fish and wildlife habitat;

(e) Impairing natural beauty;

(f) Damaging, or creating hazards to life and property within the Reservation;

(g) Degrading the quality of life on the Reservation; and

(h) Counteracting programs and efforts to conserve soil, water, and other natural resources within the Reservation.

Pursuant to § 26-1-14 herein, the Environmental Protection Board shall have the authority and responsibility for granting permits for mining operations on the Reservation, and shall enforce compliance with the tribe's Land Management Program.

Surface mining of mineral resources on the Reservation, to include clay, stone, sand, gravel, ores, or any other solid material excavated from deposits on or in the earth, will be conducted to protect the environment. Procedures will be followed which will allow for mined areas to be reclaimed or restored as contemporaneously as possible, once mining operations are terminated. Mined areas will be restored to a condition capable of supporting uses it was capable of supporting prior to any mining. Surface mining will also be conducted so no imminent condition is created which endangers the health and safety of the public outside the immediate area of mining operations.

The Board, with input from the Environmental Director, shall issue guidance documents concerning mineral resource management on Tribal lands under the Land Management Program.


§ 26-4 WATER RESOURCE MANAGEMENT


§ 26-4-1 Water Resource Management on The Reservation

The Tribe desires to protect the environmental integrity of the water resources found on or within the Reservation (herein "the Waters of the Tribe"). Under the Water Resource Management Program (herein "the Water Resource Program"), the Tribe intends to adopt water quality standards to protect public health or welfare, enhance the quality of water resources within the Reservation, provide for protection and propagation of fish, shellfish, and wildlife, provide for recreation, and serve the purposes of the Federal Clean Water Act (33 USC 1251 et seq.).


§ 26-4-2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly states otherwise:

Biological Criteria. "Biological Criteria" or "Biocriteria" are narrative expressions or numeric values of the biological characteristics of aquatic communities based upon appropriate reference conditions. Biological criteria serve as an index of aquatic community health.

Constructed Wetlands. "Constructed Wetlands" means those wetlands intentionally designed, constructed, and operated on upland, non-wetland sites for the primary purpose of wastewater or storm water treatment or environmental remediation. Constructed wetlands are not considered "Waters of the Tribe".

Criteria. "Criteria" means elements of water quality standards, expressed as a desired condition, constituent concentration, level, or narrative statement, representing a quality of water that supports a particular use.

Designated Use. "Designated Use" means a use that is specified in water quality standards as a goal for the water body segment, whether or not it is currently being attained.

Nonpoint Source. "Nonpoint Source" means pollution that is not associated with a distinct discharge point, including sources such as rainwater and runoff from agricultural lands, silvicultural operations, industrial sites, parking lots, or urban and rural developments.

Point Source. "Point Source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or concentrated animal feeding operation from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.

Quality Assurance. "Quality Assurance" or "QA" means a set of operating principles and procedures used to effectively collect environmental data and determine how believable and reliable they are.

Quality Assurance Project Plan. "Quality Assurance Project Plan" or "QAPP" means a document that provides specific information on how QA/QC is applied to the collection of data.

Quality Control "Quality Control" or "QC" means the steps taken during sample collection and analysis to ensure that data quality meets minimum standards established by a Quality Assurance Project Plan.

Surface Water. "Surface Water" means water upon the surface of the earth whether contained in bounds created naturally or artificially.

Toxics. "Toxics" means those pollutants that have a toxic effect on living organisms.

Water Quality Standards. "Water Quality Standards" are the designated use or uses, numeric and narrative criteria, and an antidegradation policy.

Waters of the Tribe. "Waters of the Tribe" include all those waters that satisfy the federal definition of "Waters of the US" that is found in 40 CFR 122.2, and generally include all lakes, rivers, streams (including intermittent and ephemeral streams), natural wetlands, sloughs, and ponds located within the exterior boundaries of the reservation.

Wetlands. "Wetlands" means those areas which are defined in 40 CFR Part 232.2, as described in § 26-3-2 herein.


§ 26-4-3 The tribe's Sovereign Immunity Under The Water Resource Program

Pursuant to § 26-1-5 herein, no part of the tribe's Water Resource Program shall be construed as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed by the Tribe, or a consent by the Tribe to jurisdiction or suit against it. The Tribe reserves the right to contest the jurisdiction of any court in any suit filed against it, except only as such jurisdiction may be expressly waived by the Tribe in such suit. The Tribe alone has the authority, subject to federal law, to regulate water use on the Reservation, and all rights to the use of water on the Reservation reside in the Tribe.


§26-4-4 Purposes Of The Water Resource Program

(a) Under the tribe's Water Resource Program, the Tribe, other persons, and certain federal agencies may be required by federal law to comply with the following federal laws and statutes and regulations thereunder, and guidance documents:

(1) The Clean Water Act of 1977 (33 USC 1251 et seq.);

(2) The Endangered Species Act (16 USC 1531 et seq.);

(3) EPA Administered Permit Programs: The National Pollution Discharge Elimination System (40 CFR 122);

(4) Water Quality Planning and Management (40 CFR 130);

(5) Water Quality Standards (40 CFR 131);

(6) Guidelines for Establishing Test Procedures for the Analysis of Pollutants (41 CFR 136);

(7) EPA Region IV Environmental Compliance Branch Standard Operating Procedures and Quality Assurance Manual (EPA, May, 1996); and

(8) Poarch Band of Creek Indians Water Quality Assessment and Monitoring Plan for Perdido Creek Drainage Basin (April 2, 1991).

(b) Purpose. The purpose of the tribe's Water Resource Program is to establish water quality standards for water bodies on the Reservation and to provide a legal basis for regulatory pollution controls. Water quality standards will be developed pursuant to the requirements of 40 CFR 131 (Water Quality Standards) and 40 CFR 130 (Water Quality Planning and Management).

(1) Assessment. A primary purpose of these water quality standards is to guide and inform efforts to monitor and assess surface water quality for water bodies on the Reservation. These water quality standards play a central role in the tribe's Water Resource Program, and have broad application and use in evaluating potential impacts on water quality from a broad range of causes and sources.

(2) Regulatory Controls. For both point and nonpoint sources, any regulatory pollution controls established by the Tribe or the Federal Government must be developed to ensure a level of water quality that will satisfy these water quality standards and support designated use classifications as determined by the Tribe. Regulatory pollution controls established for point sources shall be consistent with applicable portions of the Federal Clean Water Act (33 USC 1251 et seq.).

(3) Protection of Threatened and Endangered Species. Pursuant to 16 USC 1531 et seq. (The Endangered Species Act), it is the intent of the Tribe that the designated uses and criteria assigned to the reservation surface water will provide a level of water quality fully protective of federally listed threatened or endangered species. Where a question is raised about the protectiveness of a use designation and/or the assigned criteria as they apply to threatened or endangered species the Tribe will confer with the US Fish and Wildlife Service to ensure, to the extent practicable, that the designated uses and criteria adopted are fully protective.

(c) Authority. These water quality standards are adopted pursuant to the tribe's authority outlined in § 1-1-1 of the Tribal Code, which outlines the sovereign rights of self-governance for the Tribe. These water quality standards are to be used for all purposes of water quality standards under the Clean Water Act, consistent with 33 USC 1313 (c) (Water Quality Standards and Implementation Plans) and 33 USC 1377 (e) (Provisions for Indian Tribes).


§
26-4-5 The Environmental Protection Board Shall Develop The tribe's Water Resource Program

The Board, with the assistance of the Director of the Environmental Department, shall develop the tribe's Water Resource Program.

The Council shall review and approve the tribe's Water Resource Program, and any modifications, if necessary. The Board shall allow public participation via informal public hearings prior to issuance of or modification or resignation of regulations.

The Tribe shall from time to time, but at least once every three years, conduct a Triennial Review, which will include public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying standards where necessary or practicable. All proposed revisions to water quality standards and supporting analyses shall be made available to the public prior to the hearing. Pursuant to 33 USC 1313 (c) (2) (A), the Tribe shall submit any revised or newly adopted water quality standards and any supporting analyses to the Regional Administrator, EPA Region IV, through the Regional Tribal Program Coordinator, for review and approval within 30 days following the final action to adopt revised standards. The Tribal submission shall be consistent with EPA requirements found in 40 CFR 131.6 (Minimum Requirements for Water Quality Standards Submission).


§ 26-4-6 The Environmental Protection Board Shall Promulgate Rules and Regulations,And Issue Water Resource Program Guidance Documents

The Board shall issue rules, regulations, pertaining to the tribe's Water Resource Program, as required. The Board, with the assistance of the Director of the Environmental Department, may also approve and issue "Guidance Documents" as part of the tribe's Water Resource Program, which shall contain specific technical or scientific criteria for implementing the Water Resource Program.

Guidance documents may supplement the applicable federal criteria; however, pursuant to 33 USC 1370 (State Authority), any criteria set forth in any guidance document shall not be in conflict with, or contain any criteria which are less stringent than these federal criteria.


§ 26-4-7 Duties Of The Environmental Department Under The Water Resource Program

The Environmental Department is hereby designated as the Lead Tribal Agency for all matters pertaining the environmental protection of water resources within the Reservation. The Environmental Department shall communicate with EPA as may be necessary with regards to the environmental management of the tribe's water resources.

Specific duties of the Environmental Department under the Water Resource Program are to:

(a) Compile and review historical data on the quality of Reservation waters and develop a format for a water quality database, and enter data of acceptable quality;

(b) Determine gaps in existing data and outline a surface water quality monitoring program;

(c) Be responsible for field collection and laboratory analysis of samples, and reporting of data;

(d) Compile an updated Standard Operating Procedures (SOP) manual for water quality monitoring procedures; and

(e) Compile an updated Quality Assurance Project Plan (QAPP) that will outline the Quality Assurance/Quality Control (QA/QC) requirements for collecting and analyzing data.


§ 26-4-8 Duties Of The Director Of The Environmental Department Regarding the tribe's Water Resource Program

The duties of the Director of the Environmental Department with regards to the tribe's Water Resource Program are as stated in the job description provided by the tribe's Human Resources Department.


§ 26-4-9 The tribe's Antidegradation Policy

Pursuant to 40 CFR 131.12 (Antidegradation Policy), the following antidegradation policy is adopted under the Water Resource Program:

(a) Existing in-stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

(b) Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the Tribe finds after appropriate intergovernmental coordination and public participation, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the Tribe shall assure water quality adequate to protect existing uses fully. Further, the Tribe shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for non-point source control.

(c) Where high quality waters constitute an outstanding National resource, such as waters of National and state parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.


§ 26-4-10 Narrative Water Quality Criteria

Pursuant to 40 CFR 131.11(a)(2)(Criteria), the Tribe adopts the following narrative water quality criteria under the Water Resource Program, which are the minimum conditions applicable to all waters of the Tribe:

(a) All surface waters on the reservation shall be free from substances attributable to waste water discharges or other pollutant sources that:

(1) Settle to form objectionable deposits;

(2) Float as debris, scum, oil, or other matter forming nuisance;

(3) Produce objectionable color, odor, taste, or turbidity;

(4) Cause injury to, or are toxic to, or produce adverse physiological responses in humans, animals, or plants; or

(5) Produce undesirable nuisance aquatic life.

(b) Implementation. The narrative water quality criteria shall be implemented taking into consideration appropriate EPA technical guidance concerning development of water quality based controls, such as methods described in Chapter 2.1.2 of the Technical Support Document for Water Quality Based Toxics Controls (EPA, 1991). At such time that the Tribe adopts numeric water quality criteria, implementation procedures will be expanded to incorporate the requirements of 40 CFR 122.44 (establishing limitations, standards, and other permit conditions applicable to State National Pollutant Discharge Elimination System [NPDES] programs).


§ 26-4-11 Narrative Biological Criteria

Reservation waters shall be free from substances, whether attributable to human-induced point source discharges or non-point source activities, in concentrations or combinations which would impair the biological quality of the aquatic community as it naturally occurs. The Tribe intends to preserve, protect, and restore the water resources of the Reservation in their most natural condition. The condition of these waters shall be determined from the measures of physical, chemical, and biological characteristics of each waterbed type, according to its designated use. As a component of these measurements, the biological quality of any given Tribal water body shall be assessed by comparison to reference areas based upon similar hydrologic and watershed characteristics that represent the optimum natural condition for that system. Reference areas shall be those areas observed to support the greatest variety and abundance of aquatic life as can be expected or has been historically found in natural settings which are undisturbed or minimally disturbed by human impacts, development, or discharges. Management efforts by the Tribe relative to these criteria shall be consistent with the objective of preserving, protecting,and restoring the most natural communities of fish, shellfish, and wildlife attainable in these waters; and in all cases shall protect against degradation of the highest existing or subsequently attained uses or biological conditions pursuant to Tribal antidegradation requirements.


§ 26-4-12 Water Quality Standards For Wetlands

Wetlands are valuable resources within the Reservation. They serve to cleanse polluted waters, recharge groundwater aquifers, prevent or mitigate floods, while providing unique habitats for a wide variety of flora and fauna (fish, macroinvertebrates, amphibians, or hydrophytic vegetation) on an intermittent to regular basis. All wetlands on the Reservation which are not constructed wetlands are considered Waters of the Tribe, and shall be subject to narrative criteria and applicable antidegradation provisions. It shall be the goal of the Tribe to maintain the water quality of wetlands at naturally occurring levels, within the natural range of variation for the individual wetland. For substances that are not naturally occurring, water quality requirements shall be based on protecting existing uses of the wetland consistent with antidegradation requirements, the tribe's narrative water quality criteria, criteria assigned to hydrologically connected surface waters, or appropriate criteria guidance issued by the EPA.


§26-4-13 Designated Uses Of Tribal Waters

The Board shall designate uses for each water body on the Reservation, the main water body being Perdido Creek, and shall consider the use and value of water bodies in making such classifications.

(a) The following designated uses may be applied to individual surface water segments on the Reservation:

(1) I-Primary Contact Recreation. The quality of waters in this classification are to be suitable for recreational purposes, including such water contact activities as swimming.

(2) II-Warm Water Aquatic Life. Waters in this classification are intended for fishing and for propagation of fish, aquatic life, and wildlife.

(b) For the indicated waters of the Tribe, which includes those segments of streams as they pass through the Reservation, the designated uses shall be as follows:

Segment Description Designated Uses
Perdido Creek I/II


§ 26-4-14 Numeric Water Quality Criteria

Reserved.

This section will be used for future development and adoption of numeric criteria where appropriate for the protection of all Waters of the Tribe, to ensure Tribal compliance with 40 CFR 131 (Water Quality Standards) The long-range goal of the Tribe is to develop a complete set of baseline data on the quality of Tribal surface water and wetlands. The resulting database will:

(a) Provide an overview of the current water quality of the Reservation;

(b) Assist in future classifications of Waters of the Tribe;

(c) Help to inventory potential point and non-point sources of pollution; and

(d) Identify areas of special concern that may need immediate attention.

Data will be used for long-term monitoring, tracking water quality standards compliance, providing information for assessing environmental impacts from residential or commercial development on the Reservation, and prioritizing program activities.

Subsequent to the initial approval of the tribe's Water Resource Program by the Regional Administrator, EPA Region IV, through the Regional Tribal Program Coordinator, appropriate numeric criteria will be adopted pursuant to federal guidelines.


§ 26-4-15 Permitting Under The Water Resource Program

Reserved.

This section will be developed, concurrent with the tribe's NPDES Program, to provide a program for permitting of point and non-point sources to protect the Waters of the Tribe.


§ 26-4-16 Standard Operating Procedures And Analytical Methods

All methods of analysis used in measuring the water quality of the tribe's surface waters for purposes of determining compliance with these standards shall be in accordance with procedures outlined in 40 CFR 136 (Guidelines Establishing Test Procedures for the Analysis of Pollutants).

The Environmental Department will develop and maintain a current SOP outlining the step-by-step procedures to be used for collecting samples and performing analyses. The Tribal SOP will consider the appropriate sections of the EPA Region IV Environmental Compliance Branch Standard Operating Procedures and Quality Assurance Manual (EPA, May, 1996).

The Environmental Department will develop and maintain a current QAPP which outlines the procedures to be used for ensuring high-quality data when conducting sample collection and analysis for environmental monitoring.

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