MASTER TRIBAL SOLID WASTE MANAGEMENT ACT
ITEP Tribal Nation
TABLE OF CONTENTS
SUBCHAPTER 1.
101
102
103
104
105
106
107
108
GENERAL PROVISIONS
Title
Definitions
Declaration of Policy
Applicability; Exemptions
Authority to Administer Act
Compliance with other Laws and Regulations
Severability
Sovereign Immunity Preserved
SUBCHAPTER 2.
PROHIBITED ACTS
201
Prohibited Acts
SUBCHAPTER 3.
SUBSTANTIVE PROVISIONS REGARDING SOLID
WASTE
SUBCHAPTER 4.
ENFORCEMENT
501
General Enforcement Authority
502
Administrative Orders
503
Administrative Assessment of Penalties
504
Administrative Hearings
505
Judicial Enforcement
506
Citizen Suits
SUBCHAPTER 5.
RULEMAKING AND JUDICIAL REVIEW
501
Rulemaking
502
Judicial Review
OUTLINE OF SOLID WASTE MANAGEMENT ACT
SUBCHAPTER 1. GENERAL PROVISIONS
101
Title
This section sets forth the title of the solid waste management act
(“SWMA”).
102
Definitions
(a)“Collection” means the physical aggregating of solid waste from its place
of generation and includes all activities up to such time as the waste is
delivered to a facility for transfer, processing, treatment, or disposal.
(Pascua)
(b)"Disposal" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any waste into or on any land or water so that such
waste or any constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including groundwater.(Red Lake)
(c)“Open burning” means the combustion of any solid waste or other
discarded materials without: (1) control of combustion air to maintain
adequate temperature for efficient combustion, (2) containment of the
combustion reaction in an enclosed device to provide sufficient residence
time and mixing for complete combustion, and (3) control of the emission of
the combustion products. For purposes of this Ordinance, open burning does
not include the burning of non-toxic material for recognized ceremonial or
religious purposes.(Pascua)
(d)“Open dump” means any facility, site or area where solid waste has been
disposed of,which is not a landfill or transfer station.(Pascua)
(e)"Storage" means the accumulation of waste after generation, prior to and
following collection, processing, composting, recycling, and transportation,
and prior to disposal.(Red Lake)
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing of into the environment.
103
Declaration of Policy
This section details legislative findings concerning the public health, welfare,
and environmental impacts caused by releases of hazardous substances,
land disposal of solid and hazardous waste without adequate planning and
management, and open burning of waste. This section also explains the
legislative purpose for enacting the SWMA, which can be broad or narrow.
Sec. 5-208. Establishment of the Environmental Protection Act.
(a) Through the adoption of this environmental protection code (Act), the ITEPTribal Nation enacts as
tribal law and shall enforce the same or similar standards of the United States of America and/or the State
of Connecticut with regard to air, water, solid waste, toxic substances, insecticides, fungicides,
rodenticides, and other environmental standards more specifically referenced below.
(b) Specifically, the code provides for:
(1) Protection of the health and safety of the Tribal members and all other persons within the exterior
boundaries of the Mohegan Indian Reservation.
(2) Protection of residential, agricultural, commercial, industrial, forest, riparian and environmentally
sensitive lands within the Mohegan Indian Reservation.
(3) Protection of the historical and cultural values and traditions of the Tribe and the Mohegan Indian
Reservation with regard to the environment.
(4) Prevention of solid waste (including sanitary wastes), hazardous waste and other regulated
waste, pollution of the air, water or land including contamination of the Tribe's aquifers, ground
waters, surface waters, drinking water supplies, and storm water system.
(5) Prevention of the deterioration of natural resources, quality of life, standard of living, welfare and
well being of all persons within the Mohegan Indian Reservation.
(6) Provide and promote Tribal environmental protection services within the Mohegan Indian
Reservation and to regulate environmental activities under Tribal authority.
(7) Finance, implement, regulate and enforce environmental standards, orders and permit
conditions, uphold the laws and regulations under this Code for proper sanitary waste storage,
collection, transportation and disposal of all solid, hazardous and other regulated waste within the
boundaries of the Mohegan Indian Reservation.
(c) Any person violating any provision of the Code shall be subject to a civil fine not to exceed
$25,000.00 per violation per day based on the gravity of the violation plus actual monetary damages for
any effects on human health or the environment resulting from the violation(s). All monies collected or
received by the Mohegan Tribe, as a result of violations of the Code shall be deposited with the Mohegan
Tribe to be credited to the Environmental Protection Fund. The Environmental Protection Fund shall be
used for expenses relating to protecting human health and the environment within the Mohegan Indian
Reservation.
(d) The Code shall be applied, administered, and enforced by the Mohegan Environmental Protection
Department (MEPD). The MEPD shall be the authority having jurisdiction regarding the proper
administration, application, enforcement and modification of the requirements contained in the Code.
(e) Nothing contained in this Code is intended or shall be construed or applied to create a private right of
action in any individual or individuals, partnership, association, corporation, business trust, legal
representative, any organized group of individuals or any other person or entity.
(f) Nothing provided in these regulations shall be deemed to be a waiver of the sovereign immunity of
the Mohegan Tribe or any Tribal enterprise unless such immunity has been expressly waived within the
context of a particular case before a Mohegan Tribal Court. Nothing contained in these regulations shall
be construed to be a waiver of sovereign immunity of The Mohegan Tribe or any Tribal enterprise from
suit in federal or state courts or in any action before any state or federal agency, or in any other forum or
context.
(g) This Code may be amended at any time by the Tribal Council. The Code shall take effect
immediately upon passage by the Tribal Council.
104
Applicability; Exemptions
This section states where the SWMA applies and to whom and to what it
applies.
105
Authority to Administer Act
This section designates the tribal agency or entity responsible for
implementing the SWMA and sets forth the entity’s powers and duties
(including the authority to promulgate regulations, enforce SWMA
provisions, order monitoring and sampling, assess fees, hold hearings, and
perform any other activities necessary to carrying out the Act). It may
include authority to delegate any such powers or duties, and possibly
authority to establish an account for and expend funds paid as fees or
penalties under the SWMA.
40.0107
Jurisdiction.
The Tribal Court of the Turtle Mountain Band of
Chippewa Indians has civil jurisdiction under this Act over the
conduct of Tribal members and all other persons on all lands
within the Reservation and on tribal lands and Tribal Indian
Service Areas outside of the Reservation boundaries to maintain
the environment, natural resources, public health, safety,
welfare, political integrity and economic well-being of the
Tribe. This shall include:
a) Any person or company that has entered into a consensual
agreement with the tribe or its members; or
b) Any non-member where the conduct of the non-member threatens
or has some direct effect on the political integrity, economic
security, health or welfare of the Tribe.
Sec. 5-204. Enforcement; Delegation of Authority.
The Tribe asserts inherent sovereignty to exercise civil authority and jurisdiction over the conduct of Tribal
members and all other person on all lands within the exterior boundaries of the Nation and other lands within
the jurisdiction of the Tribe. This Ordinance is designed to maintain the environment, natural resources,
public health, safety, welfare, political integrity and economic security of the Tribe. Because violations of this
Ordinance or any rules or regulations adopted thereunder will demonstrably and seriously impact the
environment, natural resources, public health, safety, welfare, political integrity, and economic security of
the Tribe, this Ordinance, and any rules and regulations adopted thereunder, shall apply to:
1. all persons within the exterior boundaries of the Nation, without exception, including but not limited
to, all Tribal members, and all other person on the Nation, including any Indians who are members of
other Indian Tribes, all non-Indians, and any other person as defined under the Ordinance; and
2.
all places and lands located anywhere within the exterior boundaries of the Nation and other lands
within the jurisdiction of the Tribe, including all trust lands, and notwithstanding the issuance of any
patent, fee, allotment, right-of-way, lease, and any real property interest of any kind, held by any
person as defined under the Ordinance.
Sec. 5-201. Statement of Findings.
(a) The ITEP Tribal Nation has a primary interest in the protection, control, conservation and utilization of
natural resources within the ITEP Tribal Nation Reservation. It is the purpose of this Article to establish a
Tribal Environmental Protection Department to ensure the health and well-being of all people residing on
or visiting the ITEP Tribal Nation Reservation.
(b) The ITEP Tribal Nation has jurisdiction to implement and enforce Tribal air, water and land use
quality standards on the ITEP Tribal Nation Indian Reservation.
106
Compliance with other Laws and Regulations
“Compliance with the SWMA and implementing regulations does not relieve a
person of the obligation to comply with other applicable laws and
regulations.”
107
Severability
“If any provision of this Act, or the application of this Act to any person or
circumstance, is held invalid, the remainder of the SWMA and the application
of the SWMA to other persons or circumstances shall remain unaffected.”
§ 26-1-28
Severability
If any clause, sentence, paragraph, section, or part of this Code shall, for
any reason be adjudicated by any court of competent jurisdiction, to be
invalid or unconstitutional, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation to the
clause, sentence, paragraph, section, or part thereof directly involved in the
controversy in which the judgment shall have been rendered.
108
Sovereign Immunity Preserved
“This Act is not intended to waive and should not be interpreted as a waiver
of [the tribe’s] sovereign immunity from unconsented lawsuits or as
authorization for a claim for monetary damages from [the tribe].”
SUBCHAPTER 2. PROHIBITED ACTS
201
Prohibited Acts
This section lists conduct prohibited by the statute, including open dumping;
open burning at a solid waste landfill facility; open burning at other locations
without a burning permit; burning of certain specified materials; disposal of
any waste in a manner that is harmful or will create a public nuisance;
disposal of non-solid waste or bulk or non-containerized liquids at a solid
waste landfill facility or transfer station; invalid collection, transportation,
processing, or storage of waste; failure to report hazardous substance
releases; or refusal to provide information or allow information-gathering
activities to take place. This section could enable a person to petition the
agency for an exemption from the prohibition against open dumping.
201.2 NUISANCE
(Zuni
Tribe
Codes)
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heCriminal
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(IV) Public nuisance is a Class C offense.
(Oglala Sioux Tribe)
(c)It shall be unlawful for any person, firm or corporation to place, leave,
dump, or permit the accumulation of any garbage, rubbish or trash in any
building or upon any premises or on any Tribal or private property, whether
owned by such person or not on the ITEP Reservation, so that the same
provide food or harborage for rats or a breeding place for flies or other
vermin.
(d) It shall be unlawful for any person, firm or corporation to permit to
accumulate upon any premises, whether improved or vacant, or upon any
open lots, streets or open land, any lumber, boxes barrels, bricks, stones,
or any other materials or permit the same to remain thereon for any longer
time than a temporary period reasonably required for the building or
repairing of property, unless same shall be placed, on open
period reasonably required for the building or repairing of property, unless
same shall be placed, on or that are elevated not less than eighteen (18)
inches above ground and evenly piled or stacked.
(e) It shall be unlawful for any person firm or corporation to throw or
deposit any garbage or rubbish or refuse on any street, road, or public
place, nor shall any person throw or deposit any garbage or refuse in any
stream, or other body of water on the Pine Ridge Indian Reservation.
(Colorado Indian Tribes)
(f) Any person generating solid waste shall store the solid waste in durable
containers with close fitting lids. Containers shall be maintained in such a
manner so as to prevent the creation of a nuisance or a menace to the
public health.
(g) It shall be a violation of this Article for the owner, agent or occupant
of land to maintain an open dump on the premises.
(h) Each day that solid waste is stored in violation of this Section 11-8201
shall constitute a separate
civil violation of this Article
201.3 Dumping
a)No person may dispose of, dump, scatter, or place, or cause to be
disposed of, dumped, scattered, or placed,any solid waste or hazardous
waste on, at or near an open dump anywhere within the exterior boundaries
of the Reservation, including on one's residence or business, or at any
location whether on or off the
Reservation that allows such waste to blow or wash onto or otherwise enter
the Reservation;(Pascua)
b) dispose of any waste in a manner that will harm the environment,
endanger the public health, safety and welfare, or create a public nuisance.
(Red Lake)
201.4 Burning
a) Engage in open burning at a transfer station or solid waste landfill facility;
(Red Lake)
b) engage in open burning at any location without a permit, except for
cultural or traditional purposes shall not require a burning permit but shall
simply require notification to the ITEP that such burning will take place.
Notice is required to ensure that the cultural or traditional burning is not
disturbed. This permit exemption for cultural or traditional burning does not
relieve any person of the responsibility to keep such fires under control;(Red
Lake)
c) engage in open burning of any of the following: household waste, except
as provided in subdivision 2 of this section; junked motor vehicles or
salvaged materials; tires or rubber materials; plastics, plastic products, or
Styrofoam; asphalt or composition roofing; tar, tar paper, petroleum
products or paints; lumber or timbers treated with preservatives;
construction debris or demolition waste; pesticides, herbicides, fertilizers or
other chemicals; insulated wire; batteries; light bulbs; material containing
mercury; asbestos or asbestos-containing materials; pathogenic wastes;
hazardous wastes, as that term is defined in the Resource Conservation and
Recovery Act, 42 U.S.C. '' 6901-6992k, and implementing regulations;
manure; and any material other than natural vegetation that normally emits
dense smoke or noxious fumes when burned;
Subdivision 2. A person seeking to dispose on site, other than through
open burning, of solid waste generated from a family ranch, camp, or farm
may petition the Director in writing for an exemption from the prohibition
against open dumping. In ruling on the petition, the Director will consider
how close the person is to a transfer station (including a community
collection site) or SWLF and whether the on-site disposal would create a
public health or environmental hazard or public nuisance. The Director’s
decision on the petition shall be final and shall not be subject to judicial
review. A person seeking to dispose of such solid waste on site through open
burning must first apply in writing for and obtain a burning permit from ITEP
and must comply with all other applicable provisions of tribal law.(Red Lake)
201.5 Improper Storage
No person shall place or deposit solid or hazardous waste on any street, road
or alley within the Reservation. No person shall allow solid or hazardous
waste to accumulate uncontrolled on premises under such person's control
or authority. The owner, agent or occupant of a dwelling, residence,
premises or business establishment shall be responsible for maintaining their
place of residence, business, or property free of accumulated litter, refuse,
and bulky waste and for the proper storage and stockpiling of all solid waste
for collection.(Pascua)
201.6 Collection
No persons other than those designated shall collect solid waste or
hazardous waste from within the Reservation, except that a person may
collect solid waste from such person's own residence for transportation to a
landfill, transfer station, or recycling center if suitable waste disposal
services are not otherwise provided or available.(Pascua)
201.7 Importing Waste
No person may dispose of, dump, scatter, or place, or cause to be disposed
of, dumped, scattered, or placed, anywhere on the Reservation any solid
waste or hazardous waste generated outside of the Reservation, except as
may be authorized by the Tribal Council.(Pascua)
201.8 Hazardous Waste
No person may handle, store, treat, transport, re-use, or dispose of
hazardous waste within the Reservation except in compliance with all
applicable federal laws and regulations published in the United States Code
and CFR.(Pascua)
201.9 No person shall be the causation of water pollution by depositing or disposing offal,
hazardous and other waste in any waterway, stream, lake, wetland, water body, or littoral
area within the jurisdiction of ITEP Tribal Nation.
201.10 No person shall allow abandoned trailer(s) to exist on any premises within the jurisdiction
of the ITEP Tribal Nation. Abandoned trailers must be disposed of in a manner consistent with
the proper disposal of construction debris.
201.11 Junk cars/abandoned vehicles
SUBCHAPTER 3.
SUBSTANTIVE PROVISIONS REGARDING SOLID
WASTE
This Subchapter includes the provisions of the Act specific to solid waste
management, such as:
1. Criteria for solid waste management facilities, for example solid waste
landfills, transfer stations, and composting facilities
2. Solid waste collection practices (storage, disposal, fees)
3. Permitting procedures for solid waste management facilities
4. Closure and post-closure care
5. Financial assurance
301 HANDLING, STORAGE, COLLECTION, TRANSPORTATION, AND DISPOSAL
OF SPECIAL WASTES
301.1 All persons and facilities generating hazardous waste, sharps, motor oil, antifreeze, acid
lead batteries, mercury containing wastes, batteries, thermostats, thermometers, switches and
relays, flourescent light bulbs, manometers, barometers, vacuum gauges, blood pressure cuffs,
bulky waste, electronic waste, white goods, construction debris, tires, and other special wastes
must;




separate from mixed waste;
store in appropriate container;
transport such material to a waste management or recycling facility designated for the
handling of such waste and material;
transport to a specially designated collection site shall occur at times when the receipt of
such material is acceptable.
301.2 All persons transporting wastes identified in Section 301.1 ……
301.3 All hazardous and other waste transported within the jurisdiction of the ITEP Tribal
Nation shall be collected and transported in a manner that prevents the waste from leaking,
blowing off, or falling from the transport vehicle.
301.4 No person shall dispose or cause the release of hazardous and other waste anywhere within
the reservation boundaries except at designated collection sites, waste management facilities,
and under conditions described in this Section.
301.5 No person shall deposit or dispose of offal, hazardous and other waste on any highway,
roadway, or right of way within the boundaries of the Reservation.
302 Collection Services; Contracts and Licensure
(A) The Tribal Procurement Office may enter written agreements with
private, municipal, or county collection operators to collect and remove
waste from the Reservation. Before operating on the Reservation, such
operators shall obtain a license that, at a minimum, shall include the
following requirements and conditions:
(1) The operator shall submit proof that it has adequate financial resources
and experience to properly conduct the services for which it is retained,
including but not limited to the following:
(i) The filing of a performance bond or equivalent security with the Tribe in
an amount to be determined;
(ii) Other evidence requested that the operator has sufficient experience to
perform the services for which the operator is retained.
(2) All vehicles and equipment used for the collection or transportation of
solid waste shall be durable, designed for safe handling, and constructed to
minimize noise and prevent loss of solid waste from the equipment during
collection or transportation. Vehicles and equipment shall be maintained in
good condition and cleaned in a frequency and manner adequate to prevent
the creation of nuisances. Vehicles and equipment shall be clearly
marked with the name and telephone number of the operator, and shall be
covered by sufficient insurance for liability, personal injury, and damage.
(Pascua)
303
Transportation
ofcanvas-like
Waste
Tribe)
(a)REFUSE
and
rigid
vehicles
equipped
department
weekly
no
construction
putrescible
basis.
used
soTRUCKS:
shall
asfor
tocollection
arrange
or
prevent
materials
Vehicles
for
the
of(Zuni
shall
the
solid
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materials
collection
have
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solely
enpermanently
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shall
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with
of solid
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the
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atcovers
and
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Allaof
(1) All ITEP tribal members living within the boundary of the
Reservation, not participating in a franchised services, shall be
required to subscribe to the refuse collection service. All non-tribal
members shall be offered the opportunity to subscribe.
(2) Only approved vehicles shall be used for the collection of solid
waste.
(b)PASSENGER
transport
responsible
waste
thatmunicipal
isfor
improperly
the
VEHICLES:
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Any
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utilizing
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in REFUSE
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and clean
shallTRUCKS
be
up of solid
shall
(1) Responsibility includes, but is not limited to, liability for any costs
incurred in the clean up of solid waste that is improperly transported or
disposed of, as set forth in Chapter 9 of this Article.
(2) Any person disposing of solid waste shall be responsible for the
proper disposal of that solid waste
304 Recycling
In line with the Snoqualmie Tribe's desire to encourage and
incorporate environmentally protective solid waste practices,
with a focus on potential solid waste reuse, the Snoqualmie Tribal
Facilities shall adopt and implement the following
practices:
(a) All Snoqualmie Tribal Facilities shall participate in a
recycling program to be established and implemented by the Waste
Management Director. All recyclable materials shall be disposed of
in separate containers from those used for other solid
wastes, with all glass items being separate from other recyclables,
which are clearly labeled as designated solely for
recycling purposes. All Snoqualmie Tribal Facilities shall have
signs placed in visible and conspicuous locations that
explain which items may and may not be recycled. The following
items shall be placed in the recycling containers:
(1) Metals: aluminum beverage cans (emptied); steel or tin cans
(rinsed with loose lids thrown away); metal hangers;
ferrous metal (that sticks to a magnet, maximum size 16" x 16" x
12").
(2) Glass: all colors of glass jars and bottles (clean and empty
with lids and caps removed).
(3) Plastic: bottles (such as for water or soda, lids removed);
jugs (such as for milk, caps removed); round dairy tubs (lids
removed); plastic shopping bags (clean with receipts removed,
stuffed into one clear plastic bag and tied securely).
(4) Paper: butter boxes; cardboard (boxes flattened); coated
cardboard (boxes emptied and cleaned); food-boxes (such as for
cereal, liners removed); frozen food boxes; frozen juice containers
(lids removed); hardback books (with hard covers
removed); juice boxes; mail; milk cartons; newspaper; magazines;
paperback books; phone books; strip-cut shredded paper
(in clear plastic bag, tied securely); soy milk cartons.
(b) All Snoqualmie Tribal Facilities shall be required to compost
their food-waste as part of their overall recycling program.
The Department shall promulgate rules regarding the implementation
of the composting program.
(c) In addition to the above listed minimum recycling requirements,
the Snoqualmie Casino shall participate in a kitchen
grease recycling program whereby the grease produced by the Casino
will be provided to the Department for use as fuel or
for other beneficial purposes. The Department will oversee the
creation and implementation of this program, which may
include, but is not limited to, the establishment of a
recycling/reuse fund generated from profits made from the sale of
kitchen grease and also the use of biodiesel in Tribal fleet
vehicles. The Department shall have the right to make all
necessary modifications to this plan in the future as conditions
may change.
(Snoqualmie Tribal Code 6.2, § 16.0, Snoq. Tr. Code 6.2, § 16.0)
305 Composting
306 Closure of Open Dumps (A) Existing open dumps shall be closed in
accordance with the following requirements:
(1) All fires shall be extinguished;
(2) All rats and other vermin, if present, shall be exterminated by qualified
personnel;
(3) All solid waste shall be examined for potential hazardous qualities,
consolidated and removed for proper disposal following opportunity for
enforcement authorities to inspect such waste to identify its origins and the
parties responsible for creating or adding to the open dump;
(4) A final grading and revegetation plan shall be designed to restore the
former dump area to an appropriate landscape consistent with prior existing
natural conditions and native plants, to ensure proper drainage and to avoid
ponding of surface water, shall be submitted for approval, and shall be
implemented upon approval; and
(5) The exact location of the site, including GPS coordinates if available,
shall be recorded and such data shall be kept by the Land
Department.(Pascua)
SUBCHAPTER 4. ENFORCEMENT
401
General Enforcement Authority
This section lists the various enforcement authorities that the environmental
program may exercise in order to implement and enforce the SWMA. The
following sections describe each enforcement option in more
detail. (Alternatively they could all be included in one section.)
(a) The Administrator shall have the authority to:
(1) Enforce the Department's environmental and natural resource rules and regulations approved by the
Tribal Council.
(2) Promulgate, for approval by the Tribal Council, reasonable and appropriate enforcement policies and
procedures, and implement such policies and procedures as provided for in Tribal regulations enacted for
such purposes.
(3) Promulgate, for approval by the Tribal Council, a schedule of civil/criminal penalties to be assessed
for violations of the Department's rules and regulations and follow any agreed upon procedures regarding
alleged criminal violations in cases where The Tribe is precluded from asserting criminal enforcement
authority.
40.0503
The Compliance Officer. The Compliance Officer is
hereby designated as the responsible agent to ensure compliance
with and enforcement of this Act and any permits or Orders
issued pursuant to this Act and will be housed in the Tribal EPA
Office. The Compliance Officer or his duties shall not be housed
within the SWMP. Unresolved compliance issues can be appealed to
the Hearing Officer as provided for in the TAPA. The duties of
the Compliance Officer shall include:
a) Monitoring, inspecting and ensuring entities and persons
covered by this Act are in compliance to include the management
handling, treatment, storage, transfer and disposal of solid,
special and hazardous waste and the investigation, assessment
and remediation of releases or contamination to include the
duties under Section 40.1603 and:
1) Obtain any information, including records and reports, from
any owner or operator necessary to determine whether the owner
or operator is in compliance with this Act;
2) Conduct any independent monitoring or testing necessary to
ensure that owners or operators are in compliance with this Act;
3) Enter any site or premises subject to the tribal permit
programs or at which records relevant to regulated activity or
facility are kept;
4) Review and reproduce any records relevant to the regulated
activity or facility;
5) make video or photographic records of any regulated activity
or facility;
6) Inspect at any time any site or premises at which regulated
activities are conducted and make photographic, video, or other
records of information obtained during the inspection;
7) Investigate the activities of any solid waste disposal,
transfer, storage facility or collection and transportation
service in order to determine compliance with this Act or to
verify information obtained from the owner or operator;
8) Conduct any and all independent tests or samplings necessary
to verify the adequacy of methods (including sampling) used by
owners or operators or responsible party to provide information
to the Tribe or determine compliance with this Act, including,
but not limited to, testing and inspecting any equipment used by
the owner or operator or responsible party to test, sample, or
obtain information;
9) Interview persons employed in the operation of any regulated
facility or service subject to the requirements of this Act; and
10) Receive and record information submitted by any persons
concerning any regulated activity or facility. If requested, the
Compliance Officer shall provide a written response to any
person providing such information within 60 days of the request;
b) Ensuring the design, construction, operation,
monitoring, monitoring after closure of solid waste facilities
are in compliance with this Act;
c) Ensuring compliance with permits or Orders issued
under this Act and developing procedures for carrying out a
permit compliance and inspection program, including but not
limited to requiring operators file reports with the Compliance
Officer in order to monitor solid waste handling, treatment,
storage, transfer and disposal within the Reservation;
d) In the event of an accidental release or spill of a hazardous
substance, pollutant or contaminant to the air, land or waters
or groundwater of the Reservation resulting in a potential
threat to the public health, welfare or the environment within
the boundaries of the Reservation ensure compliance with the
notification and response requirements of this Act and ensure
the appropriate entity addresses the immediate and long term
impacts of the release or spill to include all necessary
containment, remediation, assessment of impacts and long term
monitoring;
e) Ensure compliance with the remediation requirements of this
Act by owners, operators, or other parties responsible for
releases of hazardous substances, pollutants or contaminants on
or from a property or site resulting in contamination to include
Remedial Assessment Agreements, Remediation Agreements,
Remediation Orders, No Further Action letters or Certifications
of Completion;
f) Ensuring compliance with Tribal Institutional Controls or
land use restrictions;
g) Conducting community outreach and education on the
requirements and means of compliance with this Act;
h) Recommending to the Tribal Council such contracts as deemed
necessary, for the accomplishment of essential compliance and
enforcement services and/or for the investigation, assessment,
or remediation of releases of solid or hazardous waste,
hazardous substances, pollutants or contaminants within the
Reservation, to include open dumping of solid waste, provided
that the Compliance Officer monitors all such contracts for the
Tribe; and
i) Seeking grants or other sources of funding to
support such efforts, and may cause to be undertaken analyses
and studies regarding the best methods for safe solid waste
handling, treatment, storage, transfer or disposal within the
Reservation; or the investigation, assessment, or remediation of
releases of solid or hazardous waste, hazardous substances,
pollutants or contaminants within the Reservation, to include
open dumping of solid waste. Such a program may include private
sector or federal government entities participation in this
effort.
40.0507
Coordination and Cooperation with other Agencies. The
Solid Waste Director, the SWMT and the Compliance Director,
jointly or individually, may:
a) Coordinate solid waste handling, treatment, transfer
or disposal with federal, state and local agencies and with
persons in the solid waste industry; and
b) Render or receive technical assistance to or from
Tribal, state, and local agencies and officials thereof and
others involved in the planning and operation of solid or
hazardous waste program and facilities.
The Compliance Officer may:
a) Assist or receive assistance from other Tribal,
state, and federal agencies in the development, and maintenance
of their inspection, enforcement, training, and regulatory
programs;
b) May organize, operate, and conduct any solid waste
enforcement activity the SWMT or Solid Waste Director deems
advisable upon the request of the governing body of the federal
agency or Tribal Council, upon the appropriation for such
purposes by the federal agency or Tribe of a sum adequate to
compensate the Tribal EPA or the Compliance Officer for the full
cost of that activity; and
c) May request, as necessary, any Tribal, state or
federal agency having jurisdiction to investigate and report on
any questions or matters involved in solid or hazardous waste
handling, treatment, transfer, disposal or release affecting the
Reservation environment or its residents.
402
Administrative Orders
Administrative orders, often called compliance orders or Orders to Comply,
may require a person to take or refrain from taking certain actions, including
cleanup. They may include field citations (expedited compliance orders),
regular compliance orders, and emergency compliance orders in the event
that an activity may endanger or cause damage to public health or welfare
or the environment.
403
Administrative Assessment of Penalties
§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.
404
Administrative Hearings
This section should identify the entity that will hold the hearing. It also
should provide hearing procedures, reference existing tribal hearing
procedures if any, or provide for hearing procedures to be established by the
environmental program by regulation (pursuant to the rulemaking
procedures in Section 501.
405
Judicial Enforcement
This section authorizes the environmental program to request the tribal
prosecutor to file an action in tribal court for injunctive relief and/or penalties
whenever a person has violated or is in violation of the SWMA or an activity
exists that may endanger or cause damage to the public health or welfare or
the environment. It could also impose criminal penalties for intentional
violations, and it could include an action for damages for any injury caused to
tribal lands or other resources as the result of a violation of the SWMA.
406
Citizen Suits
This section authorizes any person to commence a civil action in tribal court
against any person who is alleged to be in violation of any provision,
requirement or prohibition of the SWMA. Such provisions usually are not
allowed if the tribe is already taking action, and require a certain amount of
notice to the tribe so that the tribe may take action if it wishes.
SUBCHAPTER 5.
RULEMAKING AND JUDICIAL REVIEW
501
Rulemaking
This section specifies the rulemaking procedures, including providing notice
to the public of any proposed regulation (generally in a local newspaper), a
period for public comment, and a public hearing if requested. This section
also requires a written response to significant comments and that any final
regulation be based on the record of the rulemaking proceeding.
502
Judicial Review
This section would specify which actions taken by the environmental
program under the SWMA are subject to review, when, and in which tribal
court.