TITLE
19 - ENVIRONMENTAL PROTECTION
Chapter 1 - Legislative Findings and Purpose
Chapter 2 - General Provisions
Chapter 3 - Land Use and Environment Commission
Chapter 4 - Land Use and Environment Department
Chapter 5 - General Procedures
Chapter 6 - Clean Water
Chapter 7 - Solid Waste Code
Chapter 8 - Wellhead Protection Code
Chapter 9 - Air Quality Code (Reserved)
Chapter 10 - Enforcement
CHAPTER ONE
LEGISLATIVE
FINDINGS AND PURPOSE
§19-1-101. Sovereign Power to Regulate the Reservation Environment.
The power
to regulate the Reservation environment is an inherent and essential
part of the authority of any reservation tribal government. This power
is therefore an aspect of the retained sovereignty of Indian tribes
except where it has been limited or withdrawn by federal law. The Rosebud
Sioux Tribe is a sovereign Indian tribe organized pursuant to the Act
of June 18, 1934, 48 Stat. 984, as amended, and governed pursuant to
a Constitution and Bylaws ratified on November 23, 1935, and approved
by the Secretary of the Interior, Harold L. Ickes, on December 16, 1935,
as amended from time to time thereafter. Pursuant to the Constitution
and Bylaws, as amended, the Rosebud Sioux Tribal Council is the governing
body of the Rosebud Sioux Tribe. This Title is enacted pursuant to the
inherent sovereign tribal powers expressly delegated to the Tribal Council
in Article IV, Section 1(c), (h), (i), (k), (m), (t) and (u) of the
Tribal Constitution, which authorize the Tribal Council to manage and
otherwise deal with tribal lands and property, to exclude by ordinance
from the restricted lands of the Reservation persons not legally entitled
to reside therein, to promulgate and enforce ordinances providing for
the maintenance of law and order and the administration of justice on
the Reservation, to regulate the conduct of trade and the use and disposition
of property upon the Reservation, to regulate tribal agencies and tribal
officials, and to delegate to subordinate boards or tribal officials
the foregoing powers, subject to review by the Tribal Council.
§19-1-102. Lack or Adequate Environmental Regulations.
The Rosebud
Reservation, tribally owned trust lands and allotted trust lands owned
by enrolled tribal members lie within Todd, Tripp, Mellette, Gregory
and Lyman Counties, South Dakota. Todd County, in which the majority
of the Reservation lies, is unorganized under South Dakota state law
and consequently has no environmental regulations of any kind. The remaining
four counties, although organized under South Dakota state law, are
similarly without environmental regulations of any kind.
§19-1-103. Demonstrably Serious Impact of Lack of Adequate Environmental
Controls Upon the Economic Security, Health and Welfare of the Tribe
and Tribal Members.
The Reservation
is checkerboarded with both trust land and nontrust land and within
the historical boundaries of the Rosebud Reservation are substantial
populations of both Indians and non-Indians. The Reservation was established
as an agricultural reservation for farming and ranching purposes to
provide a permanent homeland for the Tribe. Since establishment of the
Reservation by the Treaty, the Tribe has maintained the essential character
of the entire Reservation; however, as additional residential, commercial,
governmental and agricultural activities multiply, the need for adequate
environmental controls grows ever more serious tribal land and tribal
members are the most precious assets of the Tribe. The Reservation is
too valuable a tribal resource to permit the uncontrolled use and alteration
of the Reservation environment, and its attendant pollution and destruction.
The Council
finds that such uncontrolled use of the Reservation environment has
a demonstrably serious impact that imperils the economic security, health,
welfare and general well-being of the Tribe, its members, and all residents
of the Reservation, resting in:
(1) gradual
loss of the essential character of the Reservation,
(2) destruction
of the historical and cultural values and traditions of the Tribe,
(3) deterioration
of the aesthetics of the Reservation,
(4) increased
air, water and solid waste disposal pollution,
(5) increased
contamination of drinking water from the Ogallala Aquifer and surface
water supplies, and
(6) deterioration
of the standards of living, quality of life, welfare and well-being
of all Reservation residents, whether tribal members or not.
§19-1-104. Consensual Relations Among Nonmembers, the Tribe,
and Tribal Members.
The Council
finds that every person who uses land, whether trust land or nontrust
land, within the Reservation, enters into consensual relations, commercial
dealings and contracts with residents of the Reservation, Indian and
non-Indian, and with the Tribe and that all such uses of land have a
demonstrably serious impact which imperils the economic security, health,
welfare and general well-being of the Tribe, its members, and all residents
of the Reservation.
§19-1-105. Tribal Environmental Responsibilities.
The Rosebud
Sioux Tribe is subject to certain responsibilities under certain federal
laws, including the Solid Waste Disposal Act codified at 42 U.S.C. §§
6901-6992k, and the Resource Conservation and Recovery Act (RCRA), codified
at 42 U.S.C. §§ 6901-6991i, and the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), codified at 42 U.S.C.
§§ 9601-9675, any discarded materials on the Reservation,
including solid wastes; liquid and contained gaseous wastes; semi-solid
wastes; sludges; and toxic, lethal and hazardous wastes.
Because
the five counties within which the Reservation and tribally owned and
individually owned trust lands lie do not have adequate environmental
laws, it is imperative that, within its jurisdiction, the Tribe regulate
all discarded materials and uses and substances that are potentially
harmful to the Reservation environment.
§19-1-106. Benefits of Tribal Government.
Among the
benefits provided by the tribal government to tribal members and to
nonmembers residing or conducting business within the Rosebud Reservation
are the following:
(1) The
provision of a civilized form of government and civilized environment
within which to reside and do business;
(2) The
provision of governmental services, including sewer and water Systems,
police and fire protection, and a Tribal Court system of general jurisdiction;
(3) The
promotion and regulation of economic activities within the Tribe's
sovereign jurisdiction; and
(4) The
orderly development and protection of the Reservation lands, resources
and communities.
§19-1-107. Territory, Persons and Property Affected.
To the
extent not prohibited by federal law, this Title shall apply to the
following.
(1) The
Rosebud Sioux Reservation within the historical boundaries of the
Reservation established in Section Two of the Act of March 2, 1889,
25 Stat. 888, including all lands, islands, waters, roads, and bridges,
or any interests therein, whether in trust or nontrust status and
notwithstanding the issuance of any patent or right-of-way, and such
other lands, islands, waters or any interest therein thereafter added
to the Reservation;
(2) All
trust or restricted land of the Tribe or any enrolled member of the
Tribe situate within the historical boundaries of the Reservation
established in Section Two of the Act of March 2, 1889, 25 Stat. 888,
including all lands, islands, waters, roads, or any interests therein,
including Tripp, Mellette, Gregory and Lyman Counties, South Dakota;
(3) All
persons and property within any geographical area referred to in subsections
(1) and (2), above, that are subject to the jurisdiction and governmental
power of the Tribe.
§19-1-108. Purpose.
The Council
hereby declares it to be in the public interest that all uses of land,
whether trust land or nontrust land, by enrolled tribal members and
nonmembers be regulated as provided by this Chapter in order to:
(1) encourage
only environmentally sound use of Reservation land and resources;
(2) protect
the sacred, cultural, social and economic stability of residential,
agricultural, commercial, industrial, forest, wildlife, and environmentally
sensitive lands, water resources, and other areas within the Rosebud
Reservation, and to assure the orderly use of such areas;
(3) prevent
the menace to the public safety resulting from the improper location
of buildings and land uses; and
(4) otherwise
promote the public health, safety, morals, and general welfare in
accordance with the treaty rights reserved by the Rosebud Sioux Tribe.
§19-1-109. Sovereign Immunity.
The Rosebud
Sioux Tribe, and all its constituent parts, including the Land Use and
Environment Commission established pursuant to this Chapter, are immune
from suit in any jurisdiction, except to the extent that such immunity
has been expressly and unequivocally waived by the Tribe in this Title
or elsewhere. Nothing in this Chapter shall be construed as waiving
the sovereign immunity of the Tribe or any of its constituent parts,
including the Land Use and Environment Commission, its members, the
Director of Land Use and Environment, or the Director of Water Resources;
except that the Commission, its members, and the Directors shall be
subject to suit for prospective, equitable relief (including declaratory
and injunctive relief) only in proceedings before the Commission and
the tribal Court. Nothing in this Title, nor any appeal to the tribal
Court, nor any enforcement action taken pursuant to this Chapter, shall
constitute a waiver of such sovereign immunity as to any claim for damages,
attorneys fees or costs, regardless of whether any such claim arises
out of the same transaction or occurrence, or in any other respect.
Nothing in this Title shall he construed as a legislative declaration
of tribal liability under federal, tribal or state environmental laws
or as a waiver of tribal sovereign immunity with respect thereto.
CHAPTER TWO
GENERAL
PROVISIONS
§19-2-101. Definitions.
In this
Title, except where otherwise specifically provided or the context otherwise
requires, the following terms and expressions shall have the following
meanings:
(1) "Business"
means any regular or temporary business engaged in by any person for
the purpose of conducting a trade, profession or commercial activity
involving the sale of any property or services. An isolated sale of
property or services shall not be considered to be a business under
this Chapter.
(2) "Commission"
means the Land Use and Environment Commission created and established
by Title 18 of this Code to administer Titles 18 and 19 of this Code.
(3) "Commissioner"
means one of the members of the Commission.
(4) "Council"
or "Tribal Council" means the Rosebud Sioux tribal Council
established as the governing body of the Rosebud Sioux Tribe in the
Tribal Constitution.
(5) "Director"
means Director of the Land Use and Environment Department established
by Title 18 of this Code, except that in Chapters 6 and 8 of this
Title, "Director" means the Director of Water Resources
unless otherwise specifically indicated.
(6) "Director
of Water Resources" means the Director of Water Resources established
by Chapter 6 of this Title.
(7) "Immediate
family" means brother, sister, son, daughter, mother, father,
husband, wife, stepbrother, stepsister, half brother, half sister,
or brother, sister, son, daughter, mother or father by adoption.
(8) "Notice,"
as used in this section, means publication in any newspapers of general
circulation on the Reservation.
(9) "Reservation"
means
(a)
The Rosebud Sioux Reservation within the historical boundaries of
the Reservation established in Section Two of the Act of March 2,
1889, 25 Stat. 888, including all lands, islands, waters, roads,
and bridges, or any interests therein, whether in trust or nontrust
status and notwithstanding the issuance of any patent or right-of-way,
and such other lands, islands, waters or any interest therein thereafter
added to the Reservation;
(b)
All trust or restricted land of the Tribe or any enrolled member
of the Tribe situate within the historical boundaries of the Reservation
established in Section Two of the Act of March 2, 1889, 25 Stat.
888, including all lands, islands, waters, roads, or any interests
therein, including Tripp, Mellette, Gregory and Lyman Counties;
(c)
All persons and property within any geographical area referred to
in subsections (1) and (2), above, that are subject to the jurisdiction
and governmental power of the Tribe.
(10)
"State" means the State of South Dakota.
(11)
"Tribal member" or "member" means an individual
Indian who is enrolled in the Rosebud Sioux Tribe.
CHAPTER THREE
LAND
USE AND ENVIRONMENT COMMISSION
§19-3-101. Land Use and Environment Commission to Administer
this Title.
The Land
Use and Environment Commission, a governmental agency and subordinate
subdivision of the Tribe created and established pursuant to Title 18
of this Code, shall administer this Title 19 pursuant to all powers
and duties delegated to it by Title 18 of this Code. All references
in Title 18 with respect to powers and duties of the Commission, whether
general or specific, and whether referring to Title 18 only, shall refer
to this Title as well.
§19-3-102. Power of Land Use and Environment Commission to Conduct
Hearings.
In addition
to other powers conferred upon it by this Title and Title 18, the Land
Use and Environment Commission shall have power to hold hearings relating
to any aspect of the administration of this Title.
§19-3-103. Power of the Land Use and Environment Commission
to Issue and Enforce Orders and Permits.
In addition
to other powers conferred upon it by this Title and Title 18, the Land
Use and Environment Commission shall have power to issue such permits
and orders as may be necessary to effectuate the purposes of this Title
and enforce the same by all appropriate administrative and judicial
proceedings.
§19-3-104. Land Use and Environment Commission is State Agency
for Purposes of Federal law.
The Land
Use and Environment Commission shall be designated as a state agency
for all state purposes of the Clean Water Act, codified at 33 U.S.C.
§§ 1251-1387; the Solid Waste Disposal Act, codified at 42
U.S.C. §§ 6901-6992k; and the Hazardous and Solid Waste Amendments
of 1984, Pub. L. 98-616, as amended to January 1, 1992.
CHAPTER FOUR
LAND
USE AND ENVIRONMENT DEPARTMENT
§19-4-101. Land Use and Environment Department to Administer
This Title.
The Land
Use and Environment Department, a governmental agency and subordinate
subdivision of the Tribe created and established pursuant to Title 18
of this Code, shall administer this Title 19 pursuant to all powers
and duties delegated to it or to the Director by Title 18 of this Code.
All references in Title 18 with respect to the duties of the Department
or the Director, whether general or specific, and whether referring
to Title 18 only, shall refer to this Title as well.
§19-4-102. Power of the Land Use and Environment Department
to Inspect Sites of Possible Pollution.
Upon complaint
by any person or upon its own motion, the Department may investigate
the activities of any permitee under this Title. In conducting an investigation
under this provision, the Department shall have the right, without notice,
to enter into the permitee's place of business or operation, to inspect
any books or records of the permittee, and to inspect any of the permittee's
equipment. Such power may be exercised by authorized agents, representatives,
and employees of the Department, including the Directors of Land Use
and Environment and of Water Resources.
CHAPTER FIVE
GENERAL
PROCEDURES
§19-5-101. Definition: "Director."
For purposes
of this Chapter, except where otherwise specifically provided or the
context otherwise requires, the term "Director" shall mean
the Director of Water Resources for purposes of actions taken pursuant
to Chapters 6 and 8 of this Title; for purposes of actions taken pursuant
to all other Chapters of this Title, the term "Director" shall
mean the Director of Land Use and Environment.
§19-5-102. Governing Procedures.
Except
as specifically modified in this Chapter, proceedings before the Directors
and the Commission shall be governed by Title 18, Chapter 21, of this
Code.
CHAPTER SIX
CLEAN WATER
§19-6-101. Findings and Purposes.
The Tribal
Council finds that pollution of the waters of the Reservation constitutes
a menace to public health and welfare, is harmful to fish, wildlife,
and aquatic life, and impairs domestic, agricultural, industrial, recreational,
and other beneficial uses of water.
The purpose
of this Chapter is to:
(1) Conserve
the waters of the Reservation;
(2) Protect,
maintain, and improve the quality of the waters of the Reservation
for the propagation of fish and wildlife, and for domestic, industrial,
agricultural, municipal, recreational, and other beneficial uses;
(3) Provide
for the prevention, abatement, and control of new or existing water
pollution;
(4) Provide
a basis for cooperation as necessary and appropriate with other sovereign
governments, including other Indian tribes, states and the federal
government, to achieve these purposes.
§19-6-102. Definitions.
In this
Chapter, except where otherwise specifically provided or the context
otherwise requires, the following terms and expressions shall have the
following meanings:
(1) "Chemigation"
means any process whereby fertilizers or pesticides are added to irrigation
water applied to land or crops or both through an irrigation system;
(2) "Discharge
of a pollutant" means any addition of any pollutant to the waters
of the Rosebud Reservation from a point source.
(3) "Nonpoint
source" means any source of the discharge of a pollutant other
than a point source.
(4) "Person"
means any individual, receiver, assignee, trustee in bankruptcy, trust,
estate, firm, partnership, joint venture, club, company, joint stock
company, business trust, investment trust, municipal corporation,
corporation, association, syndicate, pool, organization, society,
political entity, or any group of individuals acting as a unit, whether
mutual, cooperative, fraternal, nonprofit, or otherwise.
(5)
"Point source" means any discernible, confined, and discrete
conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, vessel or other floating craft,
from which any pollutant is or may he discharged.
(6) "Pollutant"
means any material that when added to water causes pollution, including
but not limited to, dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical, biological, or
radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt, soil, industrial, municipal and agricultural products
or waste.
(7) "Pollution"
means the human-made or human-induced alteration of the chemical,
physical, biological, or radiological integrity of water.
§19-6-103. Prevention of Pollution.
(1) Pollution
of the waters of the Reservation is declared not to be a reasonable,
beneficial or natural use of such waters and to be contrary to the
public policy of the Tribe.
(2) In
order to carry out the Tribe's public policy as set forth in this
Chapter, the Director of Water Resources and the Department of Land
Use and Environment shall implement this Chapter and work cooperatively
with other governmental entities to prevent, abate and control pollution
of the waters of the Reservation.
§19-6-104. Prohibited Activities.
(1) Except
as may be permitted under this Title, no person shall cause or allow
the discharge of any pollutant from a point source or nonpoint source
that reduces the quality of the waters of the Reservation to below
the standards established pursuant to §19-6-105 of this Chapter.
(2) No
person shall violate the terms or conditions of any pollution discharge
or activity permit or regulation issued pursuant to this Chapter.
§19-6-105. Director to Issue Regulations Governing Point and
Nonpoint Sources of Pollution.
(1) Point
Source Regulations.
Within
360 days of passage of this Title, the Director of Water Resources
shall promulgate final regulations, in accordance with the informal
hearing procedure set forth in title 18, Chapter 21, setting forth
management practices to control all point sources of pollution within
the boundaries of the Rosebud Reservation.
(2)
Nonpoint Source Regulations.
(a)
Within 360 days of passage of this Title, the Director of Water
Resources shall promulgate final regulations, in accordance with
the informal hearing procedures set forth in Title 18, Chapter 21,
setting forth management practices to control nonpoint source pollution
from livestock grazing and agricultural activities.
(b)
From time to time after he has issued the final regulations required
by §§ 19-6-105(1) and 19-6-105(2)(a), the Director may
promulgate or amend in the same manner other regulations setting
forth management practices to control point and nonpoint source
pollution from agricultural practices, grazing, or other activities.
(3) Effect
of Regulations.
(a)
Upon promulgation of regulations pursuant to §§ 19-6-105(1)
and 19-6-105(2)(a), no person who complies with those regulations
may be found liable for illegal pollution as the result of an activity
conducted consistent with such regulations.
(b)
If conduct of an operation consistent with the regulations results
in a violation of the water quality standards established by this
Chapter, including its antidegradation policy, the Director shall
order the person responsible for the violation to alter his operation
in a manner to prevent the violation and shall give him a reasonable
time to bring his operations into compliance. At the end of that
reasonable time, the person responsible shall be fully liable for
illegal pollution under the terms of this Chapter.
§19-6-106. Contingency Plan to Deal with Imminent Threats to
Health and Welfare.
Within
90 days of the passage of this Title and pursuant to the informal hearing
procedures set forth in Title 18, Chapter 21, the Director shall issue
a final contingency plan to implement the emergency authority granted
him by Title 18, Chapter 21.
§19-6-107. Water Quality Standards.
(1) Standards
for Identified Waters. The Director shall establish regulations
for beneficial uses and water quality standards for specific surface
waters located within the Reservation. Such regulations shall be issued
within 180 days of enactment of this Title.
(2) Antidegradation
Standards. Notwithstanding the water quality criteria established
for streams, rivers, lakes, or other bodies of water in §19-6-107(1),
it is the policy of the Tribe to prevent the unnecessary degradation
of any waters of the Reservation, which policy shall be implemented
as follows:.
(a)
Existing beneficial uses shall in all cases be maintained and protected
and no water quality degradation shall be allowed that would interfere
with or become injurious to existing beneficial uses;
(b)
Under no circumstances may the degradation of the water quality
of unique Reservation waters be allowed. Such unique Reservation
waters shall be identified by the Director in regulations within
180 days of enactment of this Title.
(c)
Whenever surface waters other than those unique waters listed in
§19-6-107(2)(b) are of higher quality than provided for by
the applicable Water Quality Standards, the existing higher water
quality shall be protected, and no degradation shall be allowed
unless the Commission waives the requirement that the higher water
quality be maintained. The Commission may grant such a waiver only
after a public hearing according to the informal hearing procedures
set forth in title 18, Chapter 21.
§19-6-108. Permits Required to Degrade or Discharge Pollutants
Into Reservation Waters.
Except
as specifically provided for or modified in this Chapter, the procedures
set forth in title 18, Chapter 21, shall govern the consideration and
issuance of any permit under this Chapter.
§19-6-109. Permit to Degrade Reservation Waters.
(1) Upon
petition in accordance with Title 18, Chapter 21, and § 19-6-108,
the Commission shall, in accordance with the informal hearing procedures
in Title 18, Chapter 21, decide whether to issue a permit to conduct
an activity that will cause or allow the discharge of a pollutant
into any body of Reservation water for which water quality standards
are established (including those waters listed in §19-6-107(1)
and (2)(b)). If an applicant seeks a point source discharge permit,
he shall include the request for water quality degradation in the
permit petition.
(2) Upon
application to and upon a determination by the Director of Water Resources
that an emergency exists, the Director may authorize short-term degradation
of water quality (not to exceed 30 days) in any body of water for
which water quality standards are established (including those waters
listed in §19-6-107(1) and (2)(b)). If the applicant seeks a
point source discharge permit, he shall include the request for short-term
water quality degradation in the petition.
(a)
For purposes of §19-6-109(2), an "emergency" is defined
as circumstances that threaten the public health or welfare or prevents
essential activities from proceeding.
(b)
The Director may permit such short-term degradation only if he determines
that clear and convincing evidence demonstrates that the degradation
will not cause long-term injury or interference with water quality
and the designated beneficial use is for the affected water body.
(c)
In all cases involving emergencies as defined in §19-6-109(2)(a),
the Director of Water Resources shall, at a minimum, provide notice
of his action to the Tribal Council and post notice on the tribal
Agency Action Bulletin Board. In addition, the Director shall provide
the closest approximation to the informal hearing procedures set
forth in Title 15, Chapter 21, taking into account the nature of
the emergency.
(d)
In circumstances in which the Director of Water Resources determines
to be emergencies, he may shorten the time within which the permit
becomes effective unless the Commission acts to stay the decision
upon appeal.
§19-6-110. Permit for Point Source Discharge.
(1) Federal
and Tribal Permits Required.
(a)
Any point source discharge of pollutants into the waters of the
Reservation requires a permit from the federal Environmental Protection
Agency. No person may discharge any pollutant from a point source
into waters of the Reservation without having first obtained a permit
from the EPA.
(b)
Further, no person may discharge any pollutant from a point source
into waters of the Reservation without first having obtained a permit
from the Commission pursuant to this Chapter.
(2) Tribal
Permit for Point Source Discharge.
(a)
In lieu of a petition for permit as required by § 19-6-109(1)
and (2), the applicant shall provide td the Director of Water Resources
a complete and full copy of his petition to the federal Environmental
Protection Agency at the same time as it is supplied to the EPA.
(b)
Upon receipt of a complete petition the Director of Water Resources
shall immediately contact the appropriate federal Environmental
Protection Agency office and advise it of the Director's intent
to review and provide public participation on the permit petition.
The Director shall request that EPA not act prior to conclusion
of the tribal process.
(c)
Within two weeks of having first received a petition, the Director
may request the applicant to supply within a reasonable time such
additional information as he deems necessary to permit a thorough
review of the petition. If the applicant fails to submit the requested
information within the reasonable time established in the Director's
request, the Director may reject the petition for such failure.
(d)
Upon receipt of a complete petition pursuant to § 19-6-109
or 19-6-110(2)(a), the Land Use and Environment Commission shall,
in accordance with informal hearing procedures established in Title
18, Chapter 21, determine whether to issue the requested permit.
The Commission shall grant the permit only if it finds, by clear
and convincing evidence, that: Commission shall not grant a permit
unless it finds on the record that:
(i)
the discharge will not result to a violation of the water quality
standards set forth in this Chapter or subsequently adopted, except
as allowed by § 19-6-107(2)(c) or § 19-6-107(2)(d) of
this Chapter; and
(ii)
the discharge will not interfere with or injure existing beneficial
uses.
(e)
If the federal Environmental Protection Agency has not yet issued
a permit, the Director shall urge EPA to act consistent with the
decision on the tribal permit. If EPA has issued a permit, the Director
shall insure that the Commission's permit conditions are at least
as stringent as those in the EPA permit.
§19-6-111. Term or Permits Issued Under This Chapter; Relationship
of Tribal Permits to EPA Permits.
A permit
granted under this Chapter shall have the same term as and shall expire
at the same time as any EPA permit granted for the same discharge. In
the absence of an EPA permit, the term of the tribal permit shall govern.
In no event shall a tribal permit issued under this Title be deemed
to reduce conditions contained in an EPA permit for the same discharge;
however, where the conditions contained in the tribal permit are more
protective on the Reservation environment than those contained in the
EPA permit, the conditions contained in the tribal permit shall govern.
§19-6-112. Compliance with Standards and Requirements or Land
Use and Environment Commission to Use Irrigation System for Chemigation.
Any person
who utilizes an irrigation system for chemigation shall comply with
any standards and requirements that are established by the Land Use
and Environment Commission pursuant to §§ 19-6-105(1) and
19-6-113.
§19-6-113. Land Use and Environment Commission to Promulgate
Rules and Standards Regarding Chemigation.
Within
360 days of passage of this Title, the Land Use and Environment Commission,
with the assistance of the Director of Water Resources, shall establish,
by rules made in accordance with informal hearing procedures established
in Title 18, Chapter 21:
(1) Chemigation
equipment standards, performance standards and installation requirements;
and
(2) Requirements
regarding the use and location of antipollution devices.
The requirements
and standards established pursuant to this section shall provide for
additional protection if chemigation involves the application of a pesticide,
rather than a fertilizer.
CHAPTER SEVEN
SOLID
WASTE CODE
§19-7-101. Findings and Purposes.
The Tribal
Council finds that:
(1) The
health and welfare of the Rosebud Sioux tribal members and other persons
who reside on the Rosebud Reservation and the opportunities for economic
development on the Reservation are at risk from the indiscriminate
and uncontrolled disposal of solid waste on the Reservation;
(2) Solid
waste is generated by Indians and non-Indians on the Rosebud Reservation
and Indians and non-Indians alike suffer from improper disposal;
(3) The
improper disposal of solid waste on the Reservation is contrary to
the historic close relationship between the people of the Rosebud
Sioux Tribe and their land;
(4) The
continued growth of population and economic activity on the Reservation
will generate greater amounts of solid waste;
(5) Federal
law requires extensive management of solid waste;
(6) There
is a need for an organized effort to manage properly the disposal
of solid waste on the Rosebud Reservation; and
(7) The
Rosebud Sioux Tribe, as the properly constituted sovereign government
of the Rosebud Reservation should undertake to regulate and manage
the disposal of solid waste.
The purposes
of this Chapter are to:
(1) Provide
environmental and health standards for the collection and disposal
of solid waste;
(2) Prohibit
future open dumping and littering of waste on the Reservation and
eliminate unhealthy, unsightly and indiscriminate disposal or placement
of solid waste; and
(3) Inform
and educate persons living on the Reservation of the need to participate
fully in efforts to manage solid waste generation, transportation,
and disposal on the Reservation.
§19-7-102. Definitions.
(1) "Beverage"
means beer or other malt beverages and mineral waters, soda water
and similar carbonated soft drinks in liquid form and intended for
human consumption;
(2) "Beverage
container" means the individual, separate, sealed glass, metal
or plastic bottle, can, jar or carton designed to contain a beverage;
(3) "Biodegradable"
means degradable through a process by which fungi or bacteria secrete
enzymes to convert a complex molecular structure to simple gasses
and organic compounds;
(4) "Contaminate"
means to introduce a substance into water that would cause:
(a)
The concentration of that substance to exceed the maximum concentration
or contaminant levels established pursuant to federal law and regulations;
or
(b) An
increase in the concentration of such substance where the concentration
in the ground water already exceeds the levels established by federal
law and regulations.
(5) "Degradable"
means capable of decomposing by biodegradation, photodegradation or
chemical process into harmless component parts after exposure to natural
elements for not more than 365 days.;
(6) "Demolition
waste" means any solid waste, largely inert waste, resulting
from the demolition of or razing of buildings, roads, and other man-made
structures, and any other material defined as "demolition waste"
pursuant to federal law;
(7) "Hazardous
waste" means solid waste that is flammable, corrosive, radioactive,
explosive, toxic or reactive or that otherwise meets the criteria
established for hazardous waste in federal law.
(8) "Hospital
or medical wastes" includes laboratory or surgical wastes and
implements, such as tissues, specimens of blood elements, excreta,
and secretions obtained from patients or laboratory animals, or clothing,
rags, needles, or paper goods contaminated with such waste.
(9) "Landfill"
means a disposal facility or part of a facility at which solid waste
is permanently placed in or on the land;
(10)
"Litter" means any used or unconsumed substance or waste,
including but not limited to any garbage, trash, refuse, debris, rubbish,
grass clippings or other lawn or garden waste, newspaper, magazines,
glass, metal, plastic or paper containers or other packaging construction
material, abandoned motor vehicle, motor vehicle parts, furniture,
oil, carcass of a dead animal, any nauseous or offensive matter of
any kind, any object likely to injure a person or create a traffic
hazard, or anything else of an unsightly or unsanitary nature that
has been discarded, abandoned or otherwise disposed of;
(11)
"Person" means an individual, firm, association, co-partnership,
political subdivision, government agency, municipality, public or
private corporation, or any other entity whatsoever, except for the
Rosebud Sioux Tribe as a sovereign entity;
(12)
"Photodegradable" means degradable through a process in
which ultraviolet radiation in sunlight causes a chemical change in
a material;
(13)
"Putrescible waste" means solid waste that contains material
capable of being decomposed by microorganisms;
(14)
"Solid waste" means all putrescible and nonputrescible solid
and semi-solid wastes including, but not limited to, abandoned vehicles
or parts thereof, ashes, demolition and construction wastes, discarded
commodities, garbage, industrial wastes, rubbish, swill, and all other
materials defined as "solid waste" pursuant to federal law.
"Solid waste" also means all liquid, solid and semisolid
materials that are not the primary products of public, private, industrial,
commercial, mining, and agricultural operations Solid waste includes
but is not limited to sludge from waste water treatment plants and
septage from septic tanks and wood waste;
(15)
"Solid waste disposal site" means the location where any
final treatment, utilization, processing or deposition of solid waste
occurs;
(16)
"Vector" means a living animal, insect, or other anthropoid
which transmits or can transmit an infectious disease from an organism
to another.
§19-7-1D3. Unlawful Practices
(1) Dumping
or Solid Wastes or Litter Anywhere Other Than at Authorized Sites.
No person shall dump, place, abandon, or deposit any solid wastes
or litter on land except at disposal sites authorized by the Department
of Land Use and Environment.
(2) Dumping
or Solid Wastes or Litter into Reservation Waters. No person shall
dump, place, abandon or deposit any solid wastes or litter into Reservation
waters except in a manner approved by the Land Use and Environment
Commission.
(3) Accumulation
or Solid Wastes or Litter. It shall be unlawful for any person,
imm, corporation, or government entity to place, leave, dump, or permit
the accumulation of any solid waste or litter in any building or upon
any premises or on property within the boundaries of the Rosebud Reservation,
except in garbage cans or other containers for purposes of collection
by an authorized collection agent or at an approved disposal site.
(4) Bulky
Items. It shall be unlawful for any person to place, leave, dump,
or permit the accumulation of unused, large bulky items, such as white
goods (refrigerators, stoves, etc.) or inoperable cars or trucks or
parts thereof in any open and visible location on the Rosebud Reservation.
(5) Landfills
and Collection Systems. No person may operate a landfill or solid
waste disposal site or operate a solid waste collection system unless
he has obtained a permit for such operation pursuant to this Title.
§19-7-104. Exemption for Farming Operations.
No provision
of this Chapter shall be construed so as to prohibit a farmer or rancher
from disposing solid waste resulting from normal farming operations
upon his own land where such disposal does not create a nuisance or
a public health hazard, does not include substances defined as hazardous
or toxic wastes under this Title, or does not otherwise violate tribal
law.
§19-7-105. Powers of Commission Under this Chapter.
For purposes
of this Chapter, the Land Use and Environment Commission has the authority
to:
(1) Adopt
a solid waste management plan for the Rosebud Reservation;
(2) Locate,
design, build, and operate solid waste disposal sites;
(3) Operate
a solid waste collection system;
(4) Contract
on behalf of the Rosebud Sioux Tribe with other persons or entities
to operate solid waste disposal sites or a solid waste collection
system, to dispose otherwise of solid waste, or to perform such other
actions as are useful to accomplish the objectives of this Chapter
and the duties of the Commission;
(5) Issue
permits as provided in this Chapter for the operation of solid waste
sites or solid waste collection systems;
(6) Employ
and consult with such advisors regarding its duties as it may deem
necessary;
(7) Make
recommendations to the Tribal Council on issues related to solid waste;
(8) Levy
such fees as may be required to fund its operation and recommend to
the tribal Council the levy of taxes as may be required or useful
to fund solid waste regulation and disposal;
(9) Accept
and use monies from whatever sources as are legally available to them
to fund its operations;
(10)
Promulgate and enforce regulations consistent with this Title, and
promulgate regulations and procedures governing the work and operations
of the Commission not inconsistent with the provision of this Code.
(11)
Do everything necessary or proper not otherwise forbidden by law for
the accomplishment of the obligations and duties imposed by this Title.
(12)
The Commission may delegate to the Director of Land Use and Environment
such of its duties as it deems appropriate, except that it may not
delegate its duties under §19-7-105 and §19-7-119(2) of
this Title. Further, in all cases, the Commission must:
(a)
Approve the expenditure of funds by the Department either through
approval of a Department budget or by approval of specific expenditures;
(b)
Approve any contracts entered into by the Department in the name
of the Rosebud Sioux Tribe;
(c)
Approve any levy of fees by the Department; and
(d)
Approve all regulations proposed by the Department to regulate solid
waste on the Reservation.
§19-7-106. Development of Solid Waste Disposal Plan.
(1) Within
180 days of the passage of this Title, the Director of Land Use and
Environment shall present to the Commission for its approval a comprehensive
Solid Waste Management Plan for the Reservation. In designing the
Plan, the Director may propose to use, in a combination that he deems
most appropriate, any of the mechanisms authorized by this Title,
including operation of parts or all of the system by Land Use and
Environment Department staff, federal agency staff, contractors, or
permittees. Such Plan shall include, at a minimum:
(a)
a solid waste collection system and disposal plan, the goal of which
shall be the collection and proper disposal of all solid waste on
the Reservation;
(b)
a mechanism to fund continued operation of the system, which shall
include, at a minimum, fees for Department-operated collection system
and deposit of waste in any Department-operated disposal site, including
special fees levied against deposit of large or bulky debris, large
volume demolition debris, or large volume construction debris;
(c)
an education and public involvement program to encourage proper
disposal of waste;
(d)
a recycling program to require or encourage recycling if the Director
deems it feasible; and
(e)
a plan to investigate the options for establishing comprehensive
system of hazardous waste control, including controls on household
hazardous waste.
(2) Within
15 days of presentation of the Solid Waste Management Plan by the
Director, the Commission shall publicize the existence of the Plan
and make widely available on the Reservation a Plan summary. Within
45 days, the Commission shall hold two public hearings at locations
of its choice, to permit Reservation residents to comment on the proposed
Plan.
(3) The
Plan as proposed by the Director shall go into effect, and the Director
shall commence its implementation, 100 days after the Director submits
it to the Land Use and Environment Commission, unless the Commission
acts to promulgate an amended Plan within the same 100 days.
§19-7-107. General Solid Waste Disposal Site Standards.
It is the
intent of this Chapter that any solid waste disposal site, whether operated
by the Land Use and Environment Department or by others under permit
from the Land Use and Environment Commission shall, to the greatest
extent practical, taking into account the needs and capabilities of
the Tribe and the Reservation community and the environmental quality
of the Reservation, meet or exceed the environmental and health-related
performance standards established by applicable federal law.
§19-7-108. Landfill Location Standards.
(1) No
landfill shall be located closer than 10,000 feet from any airport
runway.
(2) No
landfill shall be located within 1,000 feet of a lake, pond, slough,
river, stream, or wetland. To the greatest extent possible, landfills
will be located at substantially greater distances from any surface
water of significance.
(3) No
landfill shall be visible from, nor shall it be closer than 1,000
feet to, a public park or principle Reservation roadway or in a location
where the facility would constitute a potential safety hazard to the
public.
(4) No
landfill shall be located in an unstable area subject to significant
erosion, mass soil movement, or other geologic or soil conditions
which could adversely affect the safety and environmental integrity
of the landfill.
(5)
No landfill shall be located in a manner that will cause significant
adverse impact to recreational opportunities, wildlife habitat or
populations, or Reservation aesthetics.
(6) To
the greatest extent possible, taking into account the other requirements
of this Title, no landfill shall be located within 3,000 feet [measured
from its exterior boundary as established in §19-7-109] of a
dwelling inhabited at the time of landfill location.
(7) No
landfill will be located within 2,000 feet of a domestic water well,
unless the Director determines that the well will not be contaminated
by the solid waste site and establishes a water monitoring program
for the well, or the Director provides substitute water source of
equal or better convenience and quality.
§19-7-109. Landfill Design.
(1) All
landfills shall be designed and certified by an experienced engineer
to meet the location, performance and operating standards established
by this code to protect health and environmental quality.
(2) All
Landfill designs shall establish a "Landfill boundary" which
shall encompass an area judged sufficient to accept all solid waste
planned or anticipated to be deposited at the site during the planned
site life, plus a 100 yard perimeter buffer.
(3) All
landfills will be designed using drainage or control or diversion
Systems or other methods so as to limit; to the greatest extent possible,
erosion, infiltration, and surface poundage.
§19-7-110. Landfill Performance Standards.
(1) Air.
No Landfill shall violate any federal or tribal air quality standard
or requirement applicable on the Rosebud Reservation.
(2) Surface
Water. No Landfill shall cause a discharge of pollutants into
waters of the United States in violation of the federal Clean Water
Act or any applicable tribal requirements.
(3) Ground
Water.
(a)
No landfill shall cause contamination beyond the landfill boundary
of ground water of quality sufficient to be used for domestic drinking
water purposes unless the Director extends the area of contamination
beyond the normal boundary by no more than an additional 100 yards
beyond the Title established landfill boundary upon a determination
(i) that the ground water is not currently used for drinking water
purposes and (ii) the ground water will not be needed in the future
for drinking water purposes, taking in to account the rate and expected
increase or decrease of groundwater use, the availability of alternative
drinking water supplies, and the overall effect on the health of
Reservation residents.
(b)
In no case shall a landfill cause the contamination of ground water
used for drinking water at the time of site location, unless the
Director determines at the time of disposal site location that it
is in the public interest to permit contamination of the groundwater
and users of that drinking water are provided an alternative supply
of water of equal or greater quality, and convenience as their original
source.
(4) Disease.
All landfills shall minimize the population of on-site disease vectors,
such as insects and rodents.
(5) Methane.
All landfills must assure that the concentration of methane gas at
the project boundary or in project structures not exceed the limits
established by federal regulations.
§19-7-111. Landfill Site Operating Criteria.
(1) Separation
of Materials. Solid waste disposal sites shall provide separate
locations for the placement of certain materials not to be placed
in the Landfill pit, including trees or tree branches, car bodies,
and large bulky metal goods (including "white goods" such
as refrigerators, stoves, etc.), Or other items identified in this
Title or by the Land Use and Environment Commission in its Plan or
regulations as hazardous or otherwise unsuited for landfilling. Persons
seeking to deposit such materials at landfills shall be required to
separate such materials and place them in the identified locations.
(2) Physical
Operation at Disposal Sites. All landfills must utilize procedures
to meet these operating standards:
(a)
Refuse shall be unloaded at the bottom of the open working face
of the fills. This may be accomplished either by direction of supervisory
personnel or by the placement of stationary or portable fencing.
(b)
Deposited refuse shall be uniformly distributed and compacted in
layers. A working face with a slope sufficient to permit thorough
compaction shall be maintained.
(c)
At the end of each working day, unless extreme weather conditions
make operations infeasible, the open face of the Landfill shall
be covered with sufficient earth to control disease vectors and
fire.
(d)
At least two days worth of cover material shall be stockpiled at
all times.
(e)
When each portion of the Landfill site has been completed, it shall
be covered by at least twenty-four inches of compacted earth, which
will support nonweedy plant growth and is free from cracks and extrusions
of refuse. This final cover shall be leveled and shaped to provide
proper runoff and drainage, and to prevent erosion or poundage and
meet the design performance requirements of this Title.
(f)
All landfills shall be operated to control litter at the unloading
area and throughout the area within the site boundary through the
use of fences, other litter control devices, and regular, at least
bi-weekly, pickup. Disposal site operators shall also pick up site-generated
litter beyond the site boundary if such occurs.
(g)
All landfills must be operated to control dust, using sprayers or
similar devices as necessary.
(3) Burning.
Except as provided by this Title, no open burning may occur at a solid
waste disposal site. Infrequent burning of trees or tree branches,
agricultural wastes, or land clearing debris may occur if conducted
away from the working fills in an area specially designated for that
purpose and in a manner to prevent the spread of fire to any other
area or materials.
(4) Access.
(a)
All landfills must be provided with an all weather access road,
suitable for travel by loaded vehicles.
(b)
All landfills must be fenced and access must be provided only through
one control entry point.
(5) Monitoring
Programs. Each landfill shall operate a monitoring program designed
and approved at the time the landfill is first approved for operation.
The plan may, depending upon the circumstances as determined by the
Director, include monitoring of ground water, surface water, methane
gas and air quality. In all cases, ground water monitoring shall be
required unless a qualified engineer or geologist certifies, based
on reliable site-specific information, that there is no potential
for contamination of a drinking water source outside the landfill
boundary as designated by the code or extended by the Director. Test
wells for ground water monitoring, where required, shall be cased,
capped, and shall be at least four inches in diameter.
(6) Correction
of Contamination. If surface or ground water contamination is
discovered, the operator of the site, if not the Department, shall
immediately notify the Director of Land Use and Environment. In all
cases of discovery of surface or ground water contamination, whether
the operator is the Land Use and Environment Department or another,
the Director shall:
(a)
Within 90 days, determine the cause and extent of the contamination,
and
(b)
Take steps necessary to correct the cause of the contamination and
eliminate, insofar as practical, the contamination itself. If contamination
of a drinking water source cannot practically be eliminated in the
judgment of the Director, the operator shall provide an alternative
drinking water supply to any person or persons then using the contaminated
source. If no person is using the groundwater, the Director may
specify such other remedial steps, and may take such other enforcement
action, as he deems appropriate in the circumstances.
(7) Control
of Liquids. Bulk or noncontainerized liquids, or containers containing
liquids, may not be disposed of at any landfill unless the liquids
are household wastes or the containers are no larger than those commonly
found in household use.
(8) Control
or Hazardous Waste. All disposal site operators shall be trained
to identify hazardous waste prohibited from disposal in any landfill.
Each disposal site shall establish procedures, including periodic
inspection procedures, to identify and exclude hazardous waste from
the landfill.
(9) Safety.
Landfills shall be designed and operated to insure the safety of persons
depositing solid waste and landfill operation staff.
§19-7-112. Closure of Landfills.
(1) As
each unit or cell of a designated landfill is filled, it shall be
permanently closed covering the cell or unit with a final cover system,
including at least two feet of earth which is revegetated with nonweedy
vegetation and which is designed and placed in a manner to prevent
erosion, poundage, and the infiltration of liquid through the cover
and into the waste.
(2) When
a landfill site is no longer able to accept waste, it shall be closed.
The operator, if not the Land Use and Environment Department, shall
inform the Director of its intent to close the site no sooner than
six months prior to closure. Any operator, including the Department,
shall prepare a closure plan which shall be submitted to the Director
at the same time as the notice of intent to close is required. The
Plan shall be reviewed by the Land Use and Environment Commission
and approved if it contains the following components:
(a)
Rodent control measures to ensure that rodents do not leave the
site.
(b)
Marking the site to indicate that the site is closed to further
dumping and to indicate where an alternative site is located.
(c)
Covering the site with two feet of earth, capable of maintaining
nonweedy vegetation in a manner described in subsection (1).
(d)
Access control mechanisms to ensure no additional waste is disposed
at the facility.
(e)
Filling, grading, and draining the site to eliminate slumping, settling,
or poundage of water on the surface of the site.
(f)
Maintaining the site until it has settled and no further filling,
or drainage problems exist; and
(g)
Revegetation and maintenance, as required, to provide adequate cover
of nonweedy vegetation to prevent excessive erosion or runoff.
(h)
Continued monitoring of ground and surface water contamination levels,
if the Director determines necessary.
(3) If
the operator of a site is other than the Land Use and Environment.
Department, the Land Use and Environment Commission shall require
the operator to post a bond sufficient to insure continued compliance
of the Plan with these requirements.
§19-7-113. Special Wastes.
(1) Prohibited
Materials. The following materials may not be deposited in a landfill
in a refuse can or in a receptacle the contents of which are to be
deposited in a landfill: dead animals weighing over 15 pounds; sewage;
human or animal excrement; hot ashes; infectious wastes; hospital
or medical waste; hazardous wastes, except for household hazardous
wastes exempt from federal regulation; radioactive wastes; explosives;
containers previously containing pesticides or herbicides unless the
containers have been cleaned as required to eliminate substance residue.
(2) Hospital
or Medical Waste. Hospital, medical or other infectious waste
must be incinerated at the point of generation or transferred to another
medical facility for incineration. During transfer, the waste must
be carried in specially marked red plastic bags bearing the words
"hospital waste."
§19-7-114. Dumping Fees.
(1)
The Director, subject to Land Use and Environment Commission approval,
may establish or amend and thereafter may collect and enforce rates
or charges for the dumping any material in a landfill operated by
the Department, either directly or through contractors.
(2) Any
person who operates a landfill under permit may establish rates or
charges for the service performed. Such rates or charges shall be
subject to review by the Land Use and Environment Commission upon
petition by any person served by the permitted landfill. Upon such
review, the Commission may only alter the rates charged after hearing,
if it finds that they are grossly unfair and excessive or provide
the collector an unnecessarily high rate of return.
§19-7-115. Collection Systems Practices.
(1) General.
No person shall collect, transfer, store or process solid waste, including
hazardous waste in a manner that poses a direct or indirect threat
to the public health or to the quality of the environment. Solid waste
collection shall not:
(a)
cause disease;
(b)
cause air and water pollution; or
(c)
otherwise cause pollution of the environment.
(2) Collection
Periods. Any waste collection system must provide for regular,
periodic collection of waste on a schedule made well known to waste
generators. Waste collection must occur at least once weekly and may
occur more frequently by agreement between the collector and the waste
generator.
(3) Collection
Vehicles. Solid waste shall be collected by vehicles that are
constructed to be readily cleanable and which will prevent the spillage
or leakage of refuse during loading and transportation to the disposal
site.
(4) Preparation
of Garbage and Refuse for Collection.
(a)
Any collection system shall provide written instructions to waste
generators of the limits and requirements for preparation of garbage
for collection. Minimum requirements shall include:
(i)
All garbage must be placed in garbage containers of no more than
10 gallons, with lids capable of resisting entry by rodents and
other animals;
(ii)
Newspaper and magazines must be made up into bundles and tied
with a strong cord or wire;
(iii) Cardboard boxes and like materials must be flattened or
tied in bundles; all commercial or government establishments shall
keep waste paper and boxes separate from regular garbage;
(iv)
All aluminum must be separated and placed in a separate bag or
other container;
(v)
Items prohibited by § 19-7-113, above, shall not be placed
in garbage containers.
(b)
No collection shall be made of:
(i)
Burning or smoldering materials;
(ii)
Stumps and tree limbs that are more than four feet in length,
(iii)
Large-volume construction and demolition debris that will not
fit in approved containers;
(iv)
Bulky items such as car bodies or parts and white goods, (washers,
dryers, refrigerators and the like).
(5) Charges
for Collection.
(a)
The Director, subject to approval of the Land Use and Environment
Commission, may establish or amend and thereafter may collect and
enforce rates or changes for any refuse collection system operated
by the Department, either directly or through contractors.
(b)
Any person who operates a collection system under permit may establish
rates or charges for the services performed. Such rates or charges
shall be subject to review by the Land Use and Environment Commission
upon petition by any person served by the permitted collection agency.
Upon such review, the Commission may alter the rates charged only,
if after hearing, it finds that such rates are grossly unfair and
excessive or provide the collector an unnecessarily high rate of
return.
§19-7-116. Drop Box Standards.
Collection
and disposal systems may include the use of drop boxes. In all cases,
drop boxes shall be designed, located, constructed and operated so as
to:
(1) Be
sturdy and constructed of durable, water tight, easily cleanable material;
(2) Provide
effective means to control vectors, such rodents, insects, birds and
other vermin;
(3) Be
adequately screened, fenced, or otherwise arranged so as to prevent
blowing of litter and provide effective means to control litter;
(4) Be
in readily accessible locations with access provided by all-weather
roads and vehicular areas;
(5) Be
adequately signed to advise those using the facility of the standards
for preparation and/or separation of deposited materials (which shall
be the same as the requirements in § 19-7-115(4)(a)) of the materials
which are prohibited from deposit (which shall be the same as the
requirements in § 19-7-115(4)(a)) and advise the public that
all materials must be placed in the drop-box;
(6) Be
designed, sized, and serviced as often as necessary to ensure adequate
dumping capacity at all times;
(7) Include
a separate location and drop-box for aluminum and any other materials
which the Plan calls for recycling.
§19-7-117. Permits Required to Operate Disposal Sites and Collection
Systems.
(1) The
Land Use and Environment Department may operate landfills and solid
waste collection systems pursuant to the standards and requirements
of this Chapter. No other person may operate a landfill or collection
system (except for collection of his own wastes) without first obtaining
a permit.
(2) Except
as specifically provided for or modified in this Chapter, the procedures
set forth in Title 18, Chapter 21, shall govern the consideration
and issuance of any permit under this Chapter.
§19-7-118. Permit to Operate Solid Waste Disposal Sites.
(1) Petition
for Permit to Operate Solid Waste Disposal Site. If the Solid
Waste Management Plan includes provisions for landfill sites not operated
by the Land Use and Environment Department, any person may petition
for a permit to operate a disposal site in accordance with the procedures
set forth in Title 18, Chapter 21. In addition to the information
required by Title 18, Chapter 21, an application for a permit to construct
and operate or alter a landfill site shall include the following:
(a)
A general description of the facility;
(b)
A map and aerial photograph of the area to be used for the fill
showing land use and, where applicable, zoning within 2,000 feet
of the solid waste disposal site. The map and aerial photograph
shall be of sufficient scale to show all homes, wells, water ways,
topography, roads, and other objects that may be affected.
(c)
A report indicating the following:
(i)
The population and area to be served by the proposed site and
life expectancy of the facility;
(ii)
Kind, quantity and source of solid waste to be disposed at the
site;
(iii) The geological formation and groundwater elevations to a
depth of at least twice the height of the proposed landfill below
the lowest elevation of the site. Such data will be obtained by
soil boring and other appropriate means;
(iv)
The source and characteristics of cover material to be used;
(v)
Reliable data on existing ground water quality within 2,000 feet
of the site;
(vi) Topography of the site and drainage patterns.
(d)
A design and plan of operations for the facility, certified by a
professional engineer, which identifies how each landfill location,
design, performance and operating standard in this Title shall be
met through design, construction, and operation of the disposal
site. The design shall include, as well, one or more topographic
maps at a scale of not over two hundred feet to the inch. Contour
intervals shall not exceed ten feet. The maps should show proposed
fill area, borrow areas, access roads, drainage areas, fencing,
equipment and buildings.
(e)
A plan for closure of the facility, certified by a professional
engineer, explaining how each closure standard in this Title shall
be met and how post-closure activities will be performed.
(f)
A financial statement, estimating the cost of construction, operation
and closure of the site, explaining the applicant's financial condition
and the applicants' ability to fund the continued operation and
closure of the site.
(2) Issuance
of permit to Operate Solid Waste Disposal Site. Within 180 days
of submission of a complete application for a permit and in accordance
with the procedures identified in Title 18, Chapter 21, the Land Use
and Environment Commission shall issue or deny a permit. The Commission
may issue a permit only if it finds, on the basis of information contained
in the application and otherwise available to it, that the proposed
landfill will comply with the standards contained in this Chapter
and that the applicant has the financial and technical ability of
the applicant to construct, operate, and close the landfill in a manner
consistent with this Chapter. The burden of proof shall rest on the
applicant to demonstrate compliance with these requirements. In issuing
any permit, the Commission may design or condition the permit to accomplish
the goals of this Title.
(3) Term
or Permit to Operate Solid Waste Disposal Site. Permit terms shall
be established by the Commission based on the expected useful life
of the solid waste disposal site but in no case shall the permit term
exceed 15 years. If the disposal site can, within the terms of this
Chapter, continue to operate after the permit term, a permittee may
apply for a new permit six months before the term ends. The basis
and procedures for grant of an additional permit shall be the same
as for the original permit.
§19-7-119. Permits Required to Operate Collection System.
(1) Application
for Permit to Operate Collection System. If the Solid Waste Management
Plan approved by the Commission allows private collection Systems
any person may apply to operate a solid waste collection system on
part or all of the Reservation. An application for a collection system
permit must include:
(a)
A description of the collection territory proposed to be served,
including the number of household, business, or other generators
of solid waste within that territory;
(b)
A list of those households, businesses, or other generators of solid
waste that have already requested or agreed to be served by the
applicant, and the price for service they agreed to pay;
(c)
A financial description of the applicant, together with an analysis
of the cost of the proposed collection service, the expected revenue
from billings for the service, and expected rate of return for the
activity,
(d)
A description of the collection routes, timing, methods and equipment
to be used and how the proposed system will comply with all the
standards set forth in this Title.
(e)
Designation of the disposal site proposed to be used for waste collected.
(2) Issuance
of Permit to Operate Collection System. Within 30 days of receiving
a complete permit application, the Land Use and Environment Commission
shall either grant or deny a collection system permit. The Commission
shall grant a permit only if it finds, on the basis of information
contained in the application and otherwise available to it, that the
proposed collection system will comply with the standards of this
Title and that the applicant has demonstrated that the proposed system
likely can sustain its operations financially. In issuing any permit,
the Commission may design or condition the permit to accomplish the
goals of this Title.
(3) Term
of Permit to Operate Collection System. Permit terms shall be
for not less than one nor more than three years. A collection system
permit shall grant the permitee an exclusive right to collect waste
within the territory or from the waste generators identified in the
permit terms. No other permits shall be issued for similar territory
or generators during the term of the first permit issued for that
territory or those generators unless and until the permit expires
or is revoked.
§19-7-120. Reusable, Recyclable or Biodegradable Containers
Required.
After enactment
of this Title, no beverage container may be sold or offered for sale
within the historical boundaries of the Rosebud Reservation, as defined
in § 19-2-101(8), unless it is reusable, recyclable, or biodegradable.
After enactment of this Title, no beverage container may be sold or
offered for sale within the historical boundaries of the Rosebud Reservation,
as defined in § 19-2-101(8), if the beverage container is connected
to another beverage container by a device constructed of a material
that is not biodegradable or photodegradable.
§19-7-121. Recyclable or Degradable Plastic Garbage Bags or
Garbage Can Liners Required.
After enactment
of this Title, no plastic garbage bag or plastic garbage can liner may
be offered for sale within the historical boundaries of the Rosebud
Reservation, as defined in § 19-2-101(8), if the bag or can liner
is not recyclable, biodegradable, photodegradable or otherwise degradable.
§19-7-122. Starch-Based or Degradable Plastic Garbage Bags or
Garbage Can Liners Required.
After
enactment of this Title, no plastic garbage bag or plastic garbage can
liner may be offered for sale within the historical boundaries of the
Rosebud Reservation, as defined by § 19-2-101(8), if the bag or
can liner is not constructed from starch-based plastic or is not biodegradable,
photodegradable or otherwise degradable.
CHAPTER EIGHT
WELLHEAD
PROTECTION CODE
§19-8-101. Findings.
The Tribal
Council finds that:
(1) The
people of the Rosebud Reservation rely almost exclusively on sources
of underground water for their domestic water supplies;
(2) The
Reservation community water systems currently rely on 13 major water
wells to supply domestic water needs;
(3) Further
water needs may require development of additional community wells;
(4) Without
proper regulation and control, certain activities threaten to contaminate
the Reservation's underground water supplies;
(5) The
Rosebud Sioux Tribe has inherent sovereign authority over activities
that threaten the health and welfare of its people and the quality
of the Reservation environment;
(6) This
"Wellhead Protection Chapter" is enacted to preserve the
health and welfare of members of the Rosebud Sioux Tribe and other
persons living on the Reservation and to protect the environment of
the Reservation.
§19-8-102. Definitions.
(1) "Aquifer"
means a ground water-bearing geologic formation or formations that
contain enough saturated permeable material to yield significant quantities
of water to wells.
(2) "Contaminate"
means to degrade the quality of ground or well water for human consumption
by the addition or contribution of substances potentially harmful
to health or offensive to the senses.
(3) "Community
Wellhead Protection Area" or "CWPA" means the portion
of an aquifer within the zone of capture and recharge area for a well
or well field used to serve community water systems on the Rosebud
Reservation designated for protection pursuant to this Title.
(4) "Community
water systems" means water wells and distribution systems that
are operated by the Rosebud Water and Sewer Commission or such other
community or tribal water districts or entities as may hereafter be
established;
(5) "Director"
means the Director of Water Resources.
(6) "Facility"
means contiguous area of land and such structures, appurtenances or
improvements as have been placed thereon for a particular purpose.
(7) "Groundwater"
means water below the land surface in the zone of saturation.
(8) "Hazardous
wastes" means any material designated pursuant to federal law
and that generally exhibit the characteristics of ignitability, corrosivity,
reactivity, or toxicity.
(9)
"Hazardous substance" means:
(a)
any substance designated as such pursuant to federal law
(10)
"Operator" means any person in control or having responsibility
for daily operation of any facility or activity.
(11)
"Person" means any human person, individual, public or private
corporation, firm, association, joint venture, partnership, municipality,
governmental agency (including an agency of the Rosebud Sioux Tribe),
political subdivision, public officer, owner, lessee, tenant, or any
other entity whatsoever or any combination of such entity, but not
the sovereign Rosebud Sioux Tribe or the Tribal Council..
(12)
"Pesticide" means:
(a)
any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating any pest, and
(b)
any substance or mixture of substances intended for use as a plant
regulator, defoliant, or desiccant. The term 'pesticide' shall not
include any article (1) that is a 'new animal drug' within the meaning
of 21 U.S.C. § 321(w); (2) that has been determined by the
Secretary of Health and Human Services not to be a new animal drug
by a regulation establishing conditions of use for the article;
or (3) that is an animal feed within the meaning of 21 U.S.C. §
321(x) and bearing or containing an article covered by clause (1)
of this subsection.
(13)
"Well" means a pit or hole dug or drilled into the earth
to reach an aquifer in order to supply water.
§19-8-103. Initial Designation or Community Wellhead Protection
Areas.
The following
land areas are hereby designated Community Wellhead Protection Areas
under this Title.
(1) An
area surrounding the Horse Creek Community well, located in Township
41N, Range 29W, Section 11, with a radius from the well of ________________
(2)
An area surrounding the Swift Bear Community well, located in Township
47N, Range 29W, Section 31, with a radius from the well of _______________
(3) An
area surrounding the Two Strike Community well, located in Township
37N, Range 31 W, Section 8, with a radius from the well of _______________
(4) An
area surrounding the Milk's Camp Community well, located in Township
95N, Range 69W, Section 4, with a radius from the well of _______________
(5) An
area surrounding the Rosebud Rural Water System Community well, located
in Township 36 N, Range 29 W, Section 6, with a radius of the well
of ____________
(6) An
area surrounding the Rosebud Rural Water System Community well, located
in Township 36N, Range 29W, Section 6, with a radius from the well
of ______________
(7) An
area surrounding the Rosebud Rural Water System Community well, located
in Township 36N, Range 29 W, Section 20, with a radius of the well
of ____________
(8) An
area surrounding the Mission Rural Water Community well, located in
Township 37W, Range 28 W, Section 17, with a radius of the well of
____________
§19-8-104. Official Community Wellhead Protection Area Map.
(1)
There is hereby adopted an official Rosebud Reservation Community
Wellhead Protection Area Map which, together with all explanatory
matter thereon, is declared to be a part of this Title.
(2) The
Community Wellhead Protection Area Map shall be retained in the office
of the Department of Land Use and Environment. The Director of Water
Resources shall be responsible for custody, maintenance, and, as appropriate,
revision of the map. The Director shall provide copies of the current
map to the Bureau of Indian Affairs and to the Indian Health Service.
(3)
The Community Wellhead Protection Area Map or an identical copy shall
be at all times available for inspection by the public during normal
business hours of the Department.
§19-8-105. Designation of Additional or Amended Community Wellhead
Protection Areas.
(1) General.
The Commission may, subsequent to passage of this Title, designate
additional or enlarged CWPAs under the terms of this section.
(2) Basis
for Designation. The Commission may designate new or amended CWPAs
if it determines:
(a)
current areas are inadequately sized or located to protect fully
the water quality of the wells they were meant to protect;
(b)
new community wells are planned to come into production or have
come into production around which there is no adequate wellhead
protection area;
(c)
the Commission determines that an aquifer or part of aquifer contains
water of such quality and quantity that it is likely to be needed,
used, or useful for community water well purposes in the future
and should be protected.
(3) Procedure
for Designation or New or Amendment of Existing Community Wellhead
Protection Area.
(a)
The Commission shall make widely known to the Reservation community
any proposal to designate or amend a CWPA by, at a minimum,
(i)
sending notice of the proposed designation or amendment to each
owner or occupant of land within the proposed area whose name
can be identified with the exercise of reasonable diligence;
(ii)
sending notice of the proposed designation or amendment to the
Bureau of Indian Affairs and the Indian Health Service;
(iii)
sending notice of its proposed designation or amendment to each
member of the Tribal Council; and
(iv)
publishing a notice of its proposed designation at least twice
in a newspaper of general circulation on the Reservation.
(b)
The notice shall describe the land area encompassed in the proposed
addition or amendment and the restrictions upon activities in CWPAs
required by this Title. Not sooner than 10 days nor later than 30
days after the notices required by subsection (a) above are last
published, the Commission shall convene a public meeting in the
community nearest the proposed CWPA to explain the proposal and
to take comments. The comments shall be taken and the meeting otherwise
conducted in accordance with the informal hearing procedures set
forth in Title 18, Chapter 21. The public shall be permitted to
file written comments with the Commission on the proposal up to
14 days after the public meeting is held.
(4) Announcement
of Commission's Designations.
(a)
If, after the close of the public comment period, the Commission
determines to proceed with a new or amended CWPA designation, it
shall announce that decision to the Tribal Council in a "Wellhead
Protection Area Designation Report."
(b)
The Report shall describe the area to be protected, provide an accurate
map of its extent, and explain the purpose of and grounds for the
designation, which shall include an analysis of the quality, quantity
and use of the water to be protected, the threats or potential threats
to its continued quality, and the effects of designation of the
area.
(c)
The Commission shall make its final designation widely known to
the Reservation community by, at a minimum,
(i)
sending a notice of the final designation to each owner or occupant
of land within the area whose names can be identified with reasonable
diligence,
(ii)
posting a notice of the final designation at the Tribal Administration
Building, and
(iii)
publishing a notice of the final designation at least once in
a newspaper of general circulation on the Reservation.
(5) Effective
Date of Final Designations or Amendments to Community Wellhead Protection
Areas. The Commission's designation of any additional or amended
CWPA shall be final and become part of this Title within 30 days of
the date of last publication of the final designation.
(6) Amendment
of Community Wellhead Protection Area Map. Upon final designation
of an additional or amended CWPA by the Commission, the Director shall
amend the official Community Wellhead Protection Area Map to reflect
the additional or amended designation.
(7) Enforceability
of Additional or Amended Community Wellhead Protection Areas.
Unless specified otherwise by the Commission, a new or enlarged CWPA
shall become binding and enforceable only upon its addition to the
official Community Wellhead Protection Area Map.
§19-8-106. Community Wellhead Protection Area Regulation.
(1) Activities
Prohibited in Community Wellhead Protection Areas. With the exception
of activities defined as de minimis pursuant to subsection
(2) of this section or for which the Commission has issued a general
permit, no person may engage in the following activities or construct
or operate the following facilities in any CWPA: solid waste disposal
sites, waste piles, hazardous waste treatment or storage, septic systems,
waste water lagoons or other waste water treatment facilities, petroleum
products storage or disposal or petroleum product pipelines, use or
storage of hazardous materials, excluding materials sold in small
containers for household use, the raising or keeping of farm animals
(not including household pets), the use or application of pesticides
or crop fertilizer.
(2) De
Minimis Activities or Facilities Not Prohibited. De minimis
activities or facilities not prohibited by this Title include:
(a)
fuel tanks attached to private or commercial vehicles and used directly
in the propulsion of that vehicle;
(b)
use or storage, but not the disposal or leakage, of hazardous waste
or hazardous materials when the materials are sold or stored in
small containers for household use;
(c)
retail sales establishments that store or handle petroleum products
or hazardous materials for resale in their original unopened containers
of 5 gallons or 40 pounds or less. Such establishments must apply
for and obtain a CWPA permit prior to engaging in such sales.
§19-8-107. General Permits.
The Commission
may, by regulations issued pursuant to § 19-8-105(3), grant a general
permit for actions or categories of actions in one or more CWPA. If
the Commission issues a general permit, no person need thereafter seek
a specific permit to conduct the generally permitted activity within
the CWPA §19-8-108. Specific Permits.
(1) Unless
an activity is defined as de minimis under § 19-8-106(2),
above, or for which the Commission has issued a general permit under
§ 19-8-107, above, any person wishing to conduct activities or
build or operate facilities in a CWPA shall file a petition seeking
a specific permit with the Director. In addition to the requirements
set forth in Title 18, Chapter 21, the petition shall include a description
of the activity or facility proposed, its location, the distance from
any water wells, and the actions proposed by the applicant to prevent
contamination or damage to the ground water.
(2) Within
five days of filing his petition with the Director, the petitioner
must notify, either by United States mail, first-class postage prepaid
or by personal service, all persons living within the CWPA or owning
land within the CWPA whose names can be determined by reasonable diligence
of the application and the nature of the activity or facility.
(3) Upon
receipt of a complete petition for a specific permit, the Commission
shall determine whether to grant the requested permit in accordance
with the informal hearing procedures set forth in Title 18, Chapter
21. The Commission shall issue such a permit only if it finds, by
clear and convincing evidence, that the activity will not contaminate
the ground water within the CWPA. The burden of proof on this issue
rests with the petitioner.
(4) If
the Commission denies the permit, the person shall cease the activity
or remove or replace the facility within 30 days of the date of the
Commission's denial or 365 days after the designation of the CWPA
whichever is later.
§19-8-109. Nonconforming Activities.
(1) Prohibited
Activities or Facilities Shall Cease Within One Year of Designation
or a Community Wellhead Protection Area. Within one year of the
designation of a CWPA, any person engaged in an activity or owning
or operating a facility prohibited by this Title shall cease the activity
or remove or replace the facility. If the facility is a private septic
system for one home or business, the deadline for compliance shall
be two years or whenever a sewer collection system is made accessible
to the facility, whichever is longer.
(2) Permits
to be Sought Within One Year of Designation of a Community Wellhead
Protection Area. Within one year of the designation of a CWPA,
any person engaged in an activity or owning or operating a facility
requiring a permit under this Title shall apply for a permit.
CHAPTER NINE
AIR
QUALITY CODE
(RESERVED)
CHAPTER TEN
ENFORCEMENT
§19-10-101. Action by Director for Immediate Restraint of Pollution.
As an alternative
to issuing an emergency order pursuant to Title 18, Chapter 21, upon
receipt of evidence that a pollution source or combination of sources
is presenting an imminent and substantial endangerment to the health
or welfare of members of the Reservation community, the Director may
bring suit on behalf of the Tribe in the Tribal Court to restrain immediately
any person from causing or contributing to such pollution or to take
such other action as may be necessary.
§19-10-102. Action by land Use and Environment Commission to
Enjoin Violations.
The Land
Use and Environment Commission may bring an action in Tribal Court,
without furnishing bond, for an injunction against the continuation
of any alleged violation which has been the basis for suspension or
revocation of a permit by the Commission against any person who fails
to comply with an emergency order issued by the Director or any final
order of the Commission.
§19-10-103. Abatement Actions by Director.
If five
days after the date set for compliance by a Notice of Violation passes
without action on the part of the party required by the notice to correct
illegal conditions, the Director may take action to correct the conditions
and bring them into compliance with the requirements of this Title.
The Director may thereafter serve by (i) personal service or (ii) United
States mail, first-class postage prepaid, upon the party named in the
Notice of Violation a request for payment of the cost of the corrective
action, plus up to 20 percent. The notice shall establish a deadline
for payment in the same manner as provided for civil penalties. If payment
is not made within the scheduled time, the Director may seek payment
through an action in Tribal Court. In any successful action to recover
payment, the court shall additionally assess court costs against the
delinquent party and may levy against the party's assets to collect
any judgment entered.
§19-10-104. Criminal Penalty
Anyone
violating or failing to comply with the provisions of this Title shall,
upon conviction in Tribal Court, be punished by a fine of not more than
$250.00 or imprisonment in the tribal jail for not more than 30 days
or both. However, in no event shall such penalty or imprisonment exceed
the maximum established by federal law. In lieu of fine or imprisonment,
a person found guilty of violating this Title may be required by the
Tribal Court to provide not more than 30 days of community service assisting
in the collection and disposal of litter or solid waste. Each day of
violation shall be considered a separate violation of this Title.
§19-10-105. Civil Penalty.
(1) In
addition to any other sanction or remedy available under this Title,
the Land Use and Environment Commission may assess against any person,
after a hearing pursuant to §19-5-106 or waiver thereof a civil
penalty for the violation. The penalty shall not exceed $50 for each
day the violation existed prior to the service of a Notice of Violation
and $75 per day for each day thereafter. When the violation occurs
in connection with a venture entered into for profit, the respective
penalty limits shall be $100 and $150 per day. The Director himself
remedies the conditions causing the violation after the deadline for
corrective action contained in the Notice of Violation has passed
and the violator has not corrected the conditions, the civil penalty
may also include the actual cost of the remedy to the Director plus
20 percent.
(2) The
Director shall serve the Notice of Civil Penalty by (i) personal service
or (ii) United States mail, first-class postage prepaid, addressed
to the last known address of the violator. The notice shall explain
the nature of the violation and the basis of the amount of civil penalty
assessed and provide a time for payment. The Director may, in his
discretion, require payment be made either in one lump sum within
no less than 30 days from the date of service of the notice or may
be paid in installments over not more than 12 months.
(3) If
the violator fails to make payment within the specified time, or,
if an installment payment program is directed, the violator fails
to meet any of the scheduled payments, the Director may commence an
action to recovery the unpaid penalty amounts in Tribal Court.
§19-10-106. Other Actions.
The Director
may also seek other relief from the Tribal Court to enjoin any action
or practices or abate any condition that constitutes or will constitute
a violation of this Title.
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