Band of Pomo Indians

Dry Creek Rancheria

Band of Pomo Indians

Environmental Code

(Recodified as previously adopted by the Tribe on 07/20/02)

TITLE 5. SOLID WASTE DISPOSAL ORDINANCE

TABLE OF CONTENTS

CHAPTER 1. SHORT TITLE, FINDINGS, AND PURPOSE

SECTION 1. Short Title

SECTION 2. Findings

SECTION 3. Purpose

SECTION 4. Authority and Scope

SECTION 5. Applicability

SECTION 6. Consensual Relations Among Non-members, the Tribe and

Tribal Members

CHAPTER 2. DEFINITIONS

CHAPTER 3. TRIBAL ENVIRONMENTAL PROTECTION DEPARTMENT

SECTION 1. Designation as Lead Tribal Agency

SECTION 2. Creation of Position of Solid Waste Program Manager

SECTION 3. Powers and Duties of the Environmental Protection

Department

SECTION 4. Powers and Duties of Tribal Solid Waste Program Manager

CHAPTER 4. SOLID WASTE MANAGEMENT PLAN AND CONSIDERATION

SECTION 1. Approval of Plan

SECTION 2. Contents of Plan

SECTION 3. Household Hazardous Waste

SECTION 4. Prohibited Materials

SECTION 5. Prohibitions on Disposal in Open Dumps

SECTION 6. Solid Waste Facility Sites

SECTION 7. Storage

SECTION 8. Collection

SECTION 9. Disposal

SECTION 10. Periodic Review of Plan

CHAPTER 5. RESOURCE RECOVERY PROGRAM

SECTION 1. Policy and Programs

CHAPTER 6. PERMIT AND INSPECTION PROGRAM

SECTION 1. Solid Waste Facility and Transportation Permits

SECTION 2. Permits for the Construction and Operation of MSWLFs

SECTION 3. Permits for the Collection and Transportation of Solid Waste

SECTION 4. Public Hearing on MSWLF Permit Application

SECTION 5. Oath and Application Filing Fees

SECTION 6. Other Fees and Taxes

CHAPTER 7. CLOSURE; POST-CLOSURE; AND FINANCIAL ASSURANCES

SECTION 1. Closure Care Requirements for MSWLFs

SECTION 2. Post-Closure Care Requirements for MSWLFs

SECTION 3. Financial Assurance Requirements for Closure, Post-Closure

and Corrective Action

CHAPTER 8. ENFORCEMENT PROGRAM/ADMINISTRATIVE PROCEDURES

SECTION 1. Enforcement Policy

SECTION 2. Enforcement Agency

SECTION 3. Enforcement Activities

SECTION 4. Notice of Violation; Cease and Desist Order

SECTION 5. Informal Conferences

SECTION 6. Reports Required

SECTION 7. Enforcement Hearings

SECTION 8. Civil Remedies and Corrective Action

SECTION 9. Judicial Enforcement

SECTION 10. Special Provisions for Tribal Departments and Agencies

CHAPTER 9. APPEALS

SECTION 1. Judicial Review

CHAPTER 10. OTHER PROVISIONS

SECTION 1. Severability

SECTION 2. Amendments

SECTION 3. Modifications and Applicability of Part 258 Criteria 1004

SECTION 4. Effective Date

CHAPTER 11. SOVEREIGN IMMUNITY PRESERVED

APPENDIX A. Permit Application Form

APPENDIX B. Flow Chart of Environmental Agencies

CHAPTER 1. SHORT TITLE, FINDINGS, AND PURPOSE

SECTION 1. Short Title

This Ordinance shall be known as the “Dry Creek Rancheria Solid Waste Disposal

Ordinance of the Dry Creek Rancheria.”

SECTION 2. Findings

The Board of Directors hereby finds as follows:

(A) The increasing volume and variety of solid waste and hazardous waste being

generated on the Dry Creek Rancheria and the often-inadequate existing methods of

managing solid waste and hazardous waste are creating conditions that threaten the

public health, safety, and welfare of tribal members and residents of the Dry Creek

Rancheria by contributing to land, air, and water pollution, to the production of flies,

rodents, and litter, to the waste of dwindling natural resources, and to the general

deterioration of the Dry Creek Rancheria environment.

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(B) The people of Dry Creek Rancheria have a primary interest in the protection and

control of the land and other natural resources affected by the improper disposal of

solid waste within the Dry Creek Rancheria and the quality of such land and other

natural resources must be protected to insure the health, economic, aesthetic, and

cultural well-being of the Dry Creek People.

management policy, the objectives of which will be to manage and control solid waste

and to prohibit the introduction of hazardous waste into the Dry Creek Rancheria in

order to protect the health, safety, and welfare of tribal members; to preserve the

environment; and to provide for the maximum reuse of the resources contained in

solid waste.

(C) Open dumping is particularly harmful to health, contaminates drinking water from

underground and surface supplies, and pollutes the land, air, and water of the Dry

Creek Rancheria.

(K) Such protection of Rancheria resources is not adequately provided for under

existing legislation, and such protection will be furthered by the passage, adoption,

and implementation of this Ordinance.

(D) Inadequate and environmentally unsound practices for the disposal or use of solid

waste and hazardous waste have created greater amounts of soil, air, and water

pollution and other problems for public health and the environment on the Dry Creek

Rancheria. The traditional methods of solid waste and hazardous waste management

may not meet future requirements for eliminating environmental pollution and

conserving natural resources.

SECTION 3. Purpose

(E) Pursuant to federal law as determined by the U.S. Supreme Court in such cases as

Montana v. United States, 450 U.S. 544 (1981) and reaffirmed in Strate v. A-1

Contractors 117 S.Ct. 1404 (1997), the Dry Creek Rancheria possesses inherent

sovereign authority to regulate on-Rancheria solid waste disposal that affect

fundamental Tribal interests and public health and safety, including when such

activities are conducted by non-members of the Tribe on privately owned land within

the Rancheria.

(F) Under the Solid Waste Disposal Act, 42 U.S.C. §6903(13) (as part of the Resource

Conservation and Recovery Act), "Indian Tribe" is included within the definition of

municipality" for purposes of the Act. California Public Resources Code §49202

requires agreements between tribes and the State of California for solid waste disposal

facilities located on Indian lands within the State.

(G) Methods of solid waste management emphasizing source reduction, recovery, and

recycling of all solid waste are essential to the long-range preservation of the health,

safety, and welfare of the public, to the economic productivity of the Dry Creek

Rancheria, to the environmental quality of the Dry Creek Rancheria, and to the

conservation of natural resources.

The general purposes of this Ordinance are to:

(A) Finance, implement, regulate, and enforce environmental standards and criteria,

orders and permit conditions, and exercise comprehensive Tribal regulatory authority

over all solid waste and hazardous waste disposal matters within the exterior

boundaries of the Dry Creek Rancheria;

(B) Protect fundamental Tribal cultural, ceremonial, religious, fishery, and economic

stability of residential, agricultural, commercial, industrial, forest, wetlands, riparian

and environmentally sensitive lands within the exterior boundaries of the Dry Creek

Rancheria;

(C) Prevent the deterioration of the environment, standard of living, quality of life,

health, safety, and welfare of all persons within the exterior boundaries of the Dry

Creek Rancheria;

(D) Provide and promote Tribal environmental protection and services within the Dry

Creek Rancheria and to regulate environmental activities under principles of Tribal

sovereignty; and

(E) Prevent air, water, and land from solid and hazardous waste pollution, including

contamination of the Tribe's aquifers, ground waters, surface waters, drinking water

supplies, and other natural resources.

SECTION 4. Authority and Scope

(H) Disposal of solid waste and hazardous waste in or on the land without careful

planning and management will present a danger to public health and the environment.

(I) Methods are available to separate recoverable materials from solid waste. The

recovery and conservation of such materials can produce numerous benefits to the Dry

Creek Rancheria, the State of California, and the United States, including economic

benefits in the way of savings realized by conserving material in order to reduce the

value or quantity of materials that ultimately become solid waste.

(J) It is in the best interest of the Dry Creek Rancheria and the residents of the Dry

Creek Rancheria to establish and maintain a comprehensive tribal solid waste

(A) Authority. This Tribal Solid Waste Ordinance is hereby adopted by the Dry Creek

Rancheria Tribal Council pursuant to Article VII of the Tribe's Articles of Association

authorizing the Tribal Council to undertake such actions.

(B) Scope. The provisions of this Ordinance shall apply to all existing and proposed

solid waste disposal activities and to all activities which have the potential to affect

cultural, ceremonial, religious, fishery, seasonal residential, public health, safety,

welfare, land, air or water quality and other fundamental interests of the Tribe,

including such activities conducted by non-members of the Tribe or on privately

owned lands.

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CHAPTER 2. DEFINITIONS

(C) Activities to be regulated hereunder include but are not limited to:

SECTION 1. Definitions

(1) Landfills and open dumps;

(2) Storage of animal waste;

For the purposes of this Ordinance, the following words and phrases shall have the

following meanings:

(4) Land filling of sludge or septic system waste;

(A) "Applicant" means any person who has filed an application with the Department

of Environmental Protection for approval to store, collect, transport, or dispose of

solid waste on the Dry Creek Rancheria.

(5) Individual, residential, industrial, commercial or agricultural sewage

treatment facilities; and

(B) "Aquifer" means any geologic formation capable of yielding a significant amount

of potentially recoverable water.

(6) All other activities that involve the storage, collection, transportation, or

disposal of solid and/or hazardous waste within the exterior boundaries of

the Dry Creek Rancheria.

(C) "Beneficial Uses" means all lawful uses of waters identified in the Dry Creek

Rancheria Water Quality Control Ordinance. Uses may include but are not limited to

domestic, commercial, industrial, agricultural, traditional, cultural and recreational,

and uses by fish and wildlife for habitat or propagation.

(3) Automobile graveyards and junkyards;

SECTION 5. Applicability

Because any violation of this Ordinance or any regulation adopted there under will

demonstrably and seriously impact the environment, including land, water and air,

natural resources, public health, safety, welfare, political integrity and economic

security of the Tribe, this Ordinance, and any regulations adopted there under, shall

apply to: (A) all persons within the exterior boundaries of the Dry Creek Rancheria,

without exception, including but not limited to, all Tribal members, and all other

persons on the Dry Creek Rancheria, including any Indians who are members of other

Indian tribes, all non-Indians, and any other person as defined under the Ordinance;

and (B) all places and lands located anywhere within the exterior boundaries of the

Dry Creek Rancheria, including all trust and non-trust lands, and notwithstanding the

issuance of any patent, fee, allotment, right-of-way, lease, or any real property interest

of any kind, held by any person as defined under this Ordinance.

SECTION 6. Consensual Relations Among Non-Members, The Tribe and Tribal

Members

Any person who is not a member of the Tribe who uses land anywhere within the

exterior boundaries of the Dry Creek Rancheria, whether trust or non-trust land, enters

into consensual relationships with the Tribe or its members, through commercial

dealings, contracts, leases, or other arrangements. Such person's use of land involving

the storage, collection, transportation, and disposal of solid or hazardous waste on the

Dry Creek Rancheria will have a demonstrably serious impact upon the environment,

natural resources, public health, safety, welfare, political integrity, and economic

security of the Tribe and its members, unless such use is in compliance with the

provisions of this Ordinance, and any regulations promulgated hereunder.

(D) "Closure" means the termination of the receiving, handling, recycling, treatment,

composting or disposal of solid waste at a solid waste facility, and includes all

operations necessary to prepare the facility for post-closure maintenance.

(E) "Collection" means the act of collecting solid waste or hazardous waste at the

place of generation by an approved collection agent and does not mean removal.

(F) "Composting" means the controlled microbial degradation of organic solid waste

yielding a safe and nuisance-free product.

(G) "Construction" means the erection or building of new structures or the acquisition,

replacement, expansion, remodeling, alteration, modernization, or extension of

existing structures.

(H) "Board” means the Dry Creek Rancheria Board of Directors.

(I) “Department of Environmental Protection” means the Dry Creek Rancheria’s

Department of Environmental Protection.

(J) "Designated Use" means a use that is specified in water quality standards as a goal

for a water body segment, whether or not it is currently being attained.

(K) "Disposal" means the discharge, abandonment, deposit, injection, dumping,

spilling, leaking, or placing of any solid or hazardous waste into or on any soil, air, or

water.

(L) "Disposal Facility" means a facility permitted to receive and dispose of solid waste

and includes all contiguous land and structures, other appurtenances and

improvements on the land. It does not include a facility the principal function of which

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is handling, treatment, or composting of manure or other solid waste not intended for

disposal. [NOTE: the term "disposal facility" is used interchangeably with "Municipal

Solid Waste Landfill Unit" or "MSWLF."]

(M) 'Energy Recovery" means the production of energy or energy resources from the

handling or disposal of solid waste.

(N)"Enforcement Program" means the rules, regulations, and procedures adopted by

Department of Environmental Protection to enforce this Ordinance.

(O) "Handling" means collection, transportation, storage, transfer, or processing of

solid waste or hazardous waste.

expansion of the waste boundary of an existing unit. An MSWLF must comply with

all of the criteria under this Ordinance.

(V) "Open Burning" means the combustion of solid waste 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.

(W) "Open Dump" means any facility or site at which solid waste or hazardous waste

is disposed of in a manner that does not protect the environment, is susceptible to open

burning or is exposed to the elements, vectors and scavengers, and includes any

facility that fails to satisfy standards found in this Code, Tribal regulations and/or 40

CRF Part 258.

(P) "Hazardous Materials" means: 1) any substance that poses a threat to human health

or the environment. Typical hazardous substances are toxic, corrosive, ignitable,

explosive, or chemically reactive. 2) Any substance that is hazardous, toxic, ignitable,

reactive or corrosive and that is defined and regulated as such by the Department of

Environmental Protection, the State of California, or the United States of America; or

3) any substance that is defined to be hazardous or toxic by the Comprehensive

Environmental Response, Compensation and Liability Act of 1980 or the Resource

Conservation and Recovery Act of 1976, as either act may be amended from time to

time, and by any regulations promulgated thereunder, including but not limited to any

substance, material, smoke, gas, particulate matter or combination thereof containing

asbestos, petroleum, its byproducts, or polychlorobiphenyis ("PCBS").

(Y) "Permit" means any authorization, license, or equivalent control document issued

by Department of Environmental Protection under the authority of Dry Creek

Rancheria regulating the sitting, design, construction, operation, monitoring,

corrective actions, closure, post-closure maintenance, and financial assurance of solid

waste facilities.

(Q) "Historical Uses" means all uses that have historical significance for the Dry

Creek Rancheria Band of Pomo Indians.

(Z) "Permittee" means a person, including but not limited to an operator, authorized

and permitted to construct and/or operate a solid waste facility under this Ordinance.

(R) "Impervious Barrier" means any material or structure on, above or below the

ground that does not allow precipitation or surface water to penetrate directly into the

underlying surface.

(AA) "Plan" means any individual, corporation, partnership, association, agency,

municipality, commission, or department, including the Dry Creek Rancheria or other

federally-recognized Tribal government.

(S) "Implementation Schedule" means a schedule that indicates approximate dates for

the orderly, timely implementation of Solid Waste Management Plan policies and

programs, and includes approximate dates for the establishment, expansion, and

closure of any solid waste facility identified and reserved in the Plan.

(BB) "Pollutant" means any substance that will alter the quality of the waters of the

Rancheria.

(T) "Mitigation" means a measure taken to reduce adverse impacts on the

environment.

(U) "Municipal Solid Waste Landfill Unit" or "MSWLF" shall mean a discrete area of

land or an excavation that receives household waste and that is not a land application

unit, surface impoundment, injection well or waste pile, as those terms are defined

under 40 CFR 257. An MSWLF unit also may receive as authorized under the Solid

Waste Disposal Act, other types of Resource Conservation and Recovery Act, Subtitle

D, wastes, such as commercial solid waste, nonhazardous sludge, and industrial solid

waste. An MSWLF may be publicly or privately owned. An MSWLF unit may be a

new unit, an existing unit, or a lateral expansion. A lateral expansion is the horizontal

(X) "Operator" means the person to whom the approval to construct and/or operate a

solid waste facility or collection system is granted and any person who has filed an

application with Department of Environmental Protection for such approval.

(CC) "Pollution" means the condition caused by the presence in or on soil, air, or

water of any solid waste, hazardous waste, or substance derived therefrom in such

quantity, of such nature and duration or under such condition that the quality,

appearance, or usefulness of the soil, air, or water is significantly degraded or

adversely altered.

(DD) "Post-closure Maintenance" means all activities undertaken at a closed solid

waste facility to maintain the integrity of containment features and to monitor

compliance with applicable performance standards.

(EE) "Potential Uses" means all uses attainable in the water body, whether or not they

are explicitly stated as designated uses in the water quality standards or presently

potential uses.

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(FF) "Processing" means the reduction, separation, recovery, treatment or recycling of

solid waste or hazardous waste.

(2) The binding of recyclable material separately from the other solid waste;

or

(GG) "Quality of the Water or Waters" means any chemical, physical, biological,

bacteriological, radiological and other properties and characteristics of water which

affect its use.

(3) The physical separation of recyclable material from other solid waste.

(HH) "Rancheria" means all land, air, and water located within the exterior boundaries

of the Dry Creek Rancheria.

(II) “Recoverable” means the capability and likelihood of waste or byproduct being

recovered from solid waste for a commercial or industrial use.

(JJ) "Recovered Material" means material and byproducts that have been recovered or

diverted from solid waste, but such term does not include those materials and

byproducts generated from and commonly reused within an original manufacturing

process.

(KK) "Recycling" means the process of sorting, cleansing, treating and reconstituting

solid waste or other discarded materials in order to prepare the altered form for use.

(LL) "Removal" means the act of taking solid waste or hazardous waste from the place

of generation.

(MM) "Resource Recovery System" means a solid waste management system that

provides for collection, separation, recycling, and recovery of solid waste, including

disposal of non recoverable waste residue.

(NN) "Riparian" refers to land on the banks of a body of water, such as a lake, river, or

stream.

(OO) "Sanitary" means the maintenance of a location or parcel of Dry Creek

Rancheria land in which the following circumstances are avoided, including but not

limited to: 1) failure to contain solid waste resulting in windswept garbage; 2)

overbearing odors which represent a general public nuisance; 3) on-site materials

which present a fire hazard to the community; and 4) on-site materials or a collection

of solid or hazardous waste which presents a human health hazard.

(PP) "Sanitary Landfill" means a disposal facility employing a method of disposing of

solid waste on land, without creating nuisances or hazards to public health or safety,

by using methods to confine the solid waste to the smallest practical area, to reduce it

to the smallest practical volume, and to cover it with a layer of suitable cover material

at specific designated intervals.

(RR) "Solid Waste" means all putrescible and nonputrescible solid, semisolid, and

liquid waste, including but not limited to garbage, trash, refuse, paper, rubbish, ashes,

industrial waste, construction and demolition waste, abandoned vehicles and parts

thereof, discarded home and industrial appliances, manure, vegetable or animal solid

and semisolid waste, other discarded solid, liquid and semisolid waste from a

wastewater treatment plant, water supply treatment plant or air pollution control

facility or other discarded containerized gaseous material resulting from industrial,

commercial, mining or agricultural operations, or community activities; but not

including hazardous waste; solid or dissolved material in domestic sewage; solid or

dissolved material in irrigation return flows; industrial discharges that are point

sources subject to permits under 33 U.S.C.A. § 1342; or source, special nuclear, or

byproduct material as defined by the Atomic Energy Act of 1954, as amended, 42,

U.S.C.A. §§201 1, et seq.

(SS) "Solid waste facility" means a disposal facility; a transfer/processing station; a

recycling facility; a composting facility; any resource recovery system or component

thereof; any system, program or facility for resource conservation; and any facility

used for the handling, treatment, composting or disposal of solid waste; whether such

facility is associated with facilities generating such solid waste or otherwise; and

includes all contiguous land and structures, other appurtenances, and improvements on

the land.

(TT) "Solid Waste Management" means a planned program for effectively controlling

the generation, handling, treatment, composting, and disposal of solid waste in a safe,

sanitary, aesthetically acceptable, and environmentally sound manner.

(UU) "Solid Waste Management Plan “or ”Plan" means the formation of the Tribal

policies for all solid waste collection, handling, transportation, disposal, treatment,

storage, recycling, and resource conservation on or off the Dry Creek Rancheria.

(VV) "SWDA" means the federal Solid Waste Disposal Act, as amended by the

Resource Conservation and Recovery Act of 1976 ("RCRA") and the 1984 Hazardous

and Solid Waste Amendments ("HSWA") to RCRA, and more particularly, subchapter

IV – State or Regional Solid Waste Plans, SWRDA §§ 4001-4010, 42 U.S.C.A.

§§6941-6949(a), which requires that the EPA promulgate criteria for Municipal Solid

Waste Landfill Units (MSWLF's) and which prohibits disposal of solid waste at

landfills which do not satisfy such criteria. The 40 CFR Part 258 regulations contain

the criteria for MSWLF'S, which became generally effective on October 9, 1993,

although there are other effective dates under 40 CFR Part 258.

(QQ) "Segregated From Other Waste Material" means any of the following:

(1) The placement of recyclable materials in separate containers;

(WW) "Toxic Materials" means any chemical or mixture that presents an unreasonable

risk or injury to human health or the environment.

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(XX) "Transfer/processing Station" means a facility used to receive, temporarily store,

process or transfer solid waste directly from smaller to larger vehicles for transport.

"Transfer/processing station" does not include:

(1) A facility the principal function of which is to receive, handle, process,

treat, or compost manure in accordance with Tribal minimum standards;

(2) A facility the principal function of which is to receive or handle solid

waste that has already been separated for reuse and is not intended for

disposal; or

(FFF) "Water Quality Control Plan" is a document designating or establishing for the

waters within a specified area: 1) beneficial uses to be protected; 2) water quality

objectives; and 3) a program of implementation needed for achieving and maintaining

water quality objectives.

(GGG) "Water Quality Criteria" means specific levels of water quality which, if

reached, are expected to render a body of water suitable for its beneficial use.

CHAPTER 3. TRIBAL ENVIORNMENTAL PROTECTION DEPARTMENT

SECTION 1. Designation as Lead Tribal Agency

(3) The operations premises of a duly licensed solid waste collection

operator who handles solid waste as an activity incidental to the conduct of a

refuse collection and disposal business.

(YY) "Treatment" means any method, technique, or process designed or intended to

change the physical, chemical, or biological characteristics of solid waste or hazardous

waste to render it less harmful to the quality of the soil, air and water; safer to handle;

or easier to contain, manage or use as fuel, nutrient, soil amendment or other additive.

(ZZ) "Tribal Court" means the Inter-Tribal Court of California or a court designated

by the Tribe.

The Tribal Environmental Protection Department shall be the lead agency for

implementing this Tribal Solid Waste Disposal Ordinance and for all purposes under

40 CFR Part 258.

The Tribal Environmental Protection Department shall communicate with the EPA

regarding the Tribe's solid waste program; prepare the application for EPA approval of

the Tribe's solid waste program under the Part 258 Criteria; and make reports to the

EPA in a manner and containing such information as the Board approves, excluding

any confidential or privileged information.

SECTION 2. Creation of Position of Solid Waste Program Manager

(AAA) "Tribe's Solid Waste Disposal Program" means all the authorities, activities

and procedures under this Ordinance, the Tribe's Waste Management Plan and any

other Tribal laws or regulations that comprise the Tribe's system of permits and prior

approval and conditions for regulating the collection, handling, transportation, and

disposal, treatment and storage of solid waste, including all of the location, operation,

design, groundwater monitoring, corrective action, closure, post-closure, and financial

assurance requirements under Part 258 Criteria for MSWLF'S.

(BBB) "Variance" means an authorized written permission for a delay or exception in

the application of a given law, ordinance, or regulation.

(CCC) "Vector" means any insect, arthropod, rodent or other animal capable of

transmitting a pathogen from one organism to another or of disrupting the normal

enjoyment of life by adversely affecting the public health and well-being.

(DDD) "Waste" includes waste water and any and all other substances, liquid, solid,

gaseous, radioactive, heat laden, associated with human habitation, or of human or

animal origin, or from any of man's activities including producing, manufacturing or

processing operation of whatever nature, including such waste placed within

containers of whatever nature prior to, and for purposes of, disposal.

(EEE) "Waters of the Rancheria" or "Rancheria waters" means any water, surface or

underground, contained within, flowing through or bordering upon the Dry Creek

Rancheria or any portion thereof.

There is hereby created the position of Tribal Solid Waste Program Manager. The

Tribal Solid Waste Program Manager shall serve under the direction of the

Environmental Protection Director and shall be hired in accordance with the Tribe’s

administration Personnel Policies and Procedures. The Tribal Solid Waste Program

Manager shall cooperate with the U.S. EPA and other agencies of the federal

government or the State of California, as necessary to carry out the intent of this

Ordinance and implement the Tribal Solid Waste Plan.

SECTION 3. Powers and Duties of the Department of Environmental Protection

The Department of Environmental Protection shall implement, administer, and enforce

this Ordinance and the Tribe's solid waste program, pursuant to all of the powers and

duties delegated to it herein. The Department of Environmental Protection is not

authorized to consent to jurisdiction, liability, or waiver of sovereign immunity. The

Department of Environmental Protection shall also have the following powers and

duties:

(A) Develop Tribe's Solid Waste Management Plan: The Department of

Environmental Protection, with the assistance of the Solid Waste Manager, shall

develop the Tribe's Solid Waste Management Plan ("Plan"), which shall include the

identification of, and a plan for closing of all "open dumps" within the Dry Creek

Rancheria, in accordance with the SWDA and Part 258 Criteria.

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The Plan shall also include the formation of Tribal policies for all solid waste

collection, transportation, handling, treatment and disposal on or off the Dry Creek

Rancheria. If feasible, the Plan shall include a resource recovery program for the

recycling of solid wastes and a program for the disposal of household hazardous

wastes other than in the MSWLF on the Dry Creek Rancheria.

The Plan shall also include a description of any MSWFL's on the Dry Creek Rancheria

that are in compliance with the Part 258 Criteria, which will continue to receive solid

waste. Such Plan shall contain a descriptive narration of the location, design and

operation of such MSWLF's and how such MSWLF's will satisfy the Part 258 Criteria.

The Plan shall also include:

(1) An estimation of the volume and composition of all solid waste which is

generated on the Dry Creek Rancheria, and an estimation of the volume and

composition of solid waste from sources outside the Dry Creek Rancheria

that may be disposed of in any MSWLF on the Dry Creek Rancheria

pursuant to any intergovernmental agreement that the Board of Directors

may authorize;

(2) An identification of the responsibilities of other Tribal agencies and

entities involved in the implementation of the Tribe's solid waste disposal

program and the distribution of federal or state funds to the Tribal

authorities responsible for development and implementation of the Tribe's

solid waste disposal program;

(3) A review of the Tribal regulatory systems which are necessary to

implement the Tribe's solid waste disposal program, and enforce the

Ordinance and rules or regulations promulgated hereunder;

(4) A review of any contracts for the closing of all "open dumps" on the Dry

Creek Rancheria or the removal of solid waste disposed of at "open dumps"

on the Dry Creek Rancheria to duly authorized facilities off the Dry Creek

Rancheria and an assessment of such costs;

(5) A review of the 40 CFR Part 257 criteria and the authorization of the

disposal of any solid waste on the Dry Creek Rancheria under the Part 257

criteria under the rules and regulations to be adopted by the Board of

Directors;

(6) The identification of preferred locations on the Dry Creek Rancheria for

the establishment of new MSWLF's and a review of whether groundwater

monitoring could be suspended at such locations under 40 CFR §258.50(b);

and

(7) A study of how solid waste will be disposed of on or off the Dry Creek

Rancheria, in compliance with the Part 258 Criteria, including an assessment

of costs for constructing and operating MSWLF'S, or transfer stations on the

Dry Creek Rancheria and an assessment of costs for the collection and

transportation of solid waste on or off the Dry Creek Rancheria.

The Plan may also include any other matters which are relevant for the Tribe's solid

waste disposal program.

The Department of Environmental Protection submits the Plan to the Board of

Directors, in writing, for its review, modification and approval.

(B) Identify and Close All Open Dumps on the Dry Creek Rancheria: In compliance

with the Solid Waste Disposal Act, the Department of Environmental Protection shall

identify and shall prohibit the disposal of any solid waste at all "open dumps" on the

Dry Creek Rancheria. The Department of Environmental Protection shall also take

whatever action is necessary to close in a timely manner all "open dumps" on the Dry

Creek Rancheria as required by the Part 258 Criteria. An "open dump" is a landfill that

does not satisfy the 40 CFR Part 258 Criteria.

(C) Issue Solid Waste Disposal Permits: The Department of Environmental Protection

shall have the authority and responsibility to issue permits for the location, design,

construction, operation, closure, post-closure, and financial assurance requirements for

an MSWLF's on the Dry Creek Rancheria. The Department of Environmental

Protection shall also have the authority and responsibility to issue permits for the

collection and transportation of solid waste on the Dry Creek Rancheria. This

authority shall not be delegated to the Solid Waste Manager.

(D) Conduct Hearings: In addition to the other powers conferred upon it herein, the

Department of Environmental Protection shall have the power to hold all public or

administrative hearings specifically provided for under this Ordinance.

(E) Take Remedial Action, Assess Civil Penalties, and Revoke, Suspend, or Modify

Permits: The power of the Department of Environmental Protection to enforce

compliance with the Tribe's solid waste disposal program includes the power to take

remedial action, assess civil penalties and revoke suspend or modify permits.

(F) Promulgate Rules and Regulations and to Issue Solid Waste Guidance Documents:

The Department of Environmental Protection shall promulgate rules and regulations

from time to time, as required by the Ordinance, or to implement or enforce any

provisions or requirements of the Ordinance, including a system of civil fines,

sanctions and penalties, for violations of this Ordinance or any rules and regulations

promulgated under this Ordinance. All rules and regulations promulgated by the

Department of Environmental Protection within the scope of its authority and

responsibility shall be submitted to the Board of Directors for its approval and

adoption, before they are enforceable as Tribal law on the Dry Creek Rancheria. The

Department of Environmental Protection shall adopt rules and regulations for landfills

on the Dry Creek Rancheria under the 40 CFR Part 257 Criteria; for the collection and

transportation of solid waste; and other rules and regulations as required herein.

7

The Department of Environmental Protection, with the assistance of the Director of

the Tribe's Solid Waste Manager, may also approve and issue "Guidance Documents"

as part of the Tribe's solid waste program, which shall contain specific technical or

scientific criteria for implementing the location, construction, design, operation,

closure or post-closure requirements for MSWLF'S. Guidance documents may

supplement the Part 258 Criteria, but any criteria set forth in any guidance document

shall not be in conflict with any Part 258 Criteria, or contain any criteria which are less

stringent than the Part 258 Criteria. Guidance documents shall be enforceable if they

are specifically referenced or attached, as part of, or as a condition of, any permit

issued under the Ordinance.

(C) The preparation of an inventory and location of all sites on the Dry Creek

Rancheria where solid waste has been disposed and a plan to close all sites as required

under 40 CFR Part 258.

(G) Apply for and Obtain Federal or State Financial and Technical Assistance to

Implement the Tribe's Solid Waste Program: The Department of Environmental

Protection is authorized to apply, as soon as practicable, for federal or state financial

aid, training and technical assistance, for development of the Tribe's Solid Waste

Management Plan and to implement the Tribe's solid waste program. This shall

include grants available from EPA's Regional Office as may be authorized under the

SWDA; and includes any other federal grants, funds, or assistance which may be

available from the EPA; the U.S. Department of the Interior, Bureau of Indian Affairs;

the U.S Department of Housing and Urban Development; the Administration for

Native Americans; and any other federal state or other governmental agencies or

sources; including any federal appropriations under the Indian Environmental General

Assistance Program Act of 1992, P.L. 102-497.

(F) The preparation of the application to EPA for approval of the Tribe's solid waste

program under 40 CFR Part 239 and Part 258.

(H) Prepare and File and Annual Report With Board of Directors: The Department of

Environmental Protection shall prepare and file an annual report with the Board of

Directors no later than July 1 of each year, which shall review the progress achieved

under the Tribe's solid waste program, and shall include any reports requested by the

Board of Directors. The Department of Environmental Protection shall recommend

what specific actions should be taken by the Board of Directors regarding the Tribe's

solid waste program.

(D) The location of appropriate sites on the Dry Creek Rancheria where MSWLF's

might be located in compliance with this Ordinance and 40 CFR Part 258.

(E) The preparation of technical reports for the Department of Environmental

Protection or Board of Directors, as may be requested from time to time, including

environmental assessments as may be necessary.

(G) The administration, supervision, monitoring, investigation and enforcement of

solid waste collection, transportation and disposal on the Dry Creek Rancheria in

compliance with this Ordinance and all laws, rules, regulations, and guidance

documents promulgated there under.

(H) The investigation and preparation of applications for federal or state grants,

funding and financial/technical assistance to implement the Tribe's solid waste

program.

(I) The providing of any assistance to the Department of Environmental Protection as

requested from time to time, in matters involving the Ordinance and the Tribe's solid

waste program; assisting in public education as to matters involving solid waste

collection and disposal on the Dry Creek Rancheria; and assisting in any public,

judicial, or administrative hearings, as provided for under this Ordinance.

(J) The issuance of compliance, cease and desist, and remedial action orders to any

permittee under this Ordinance as provided herein; and the application for injunctive

relief to abate pollution and other unlawful activities under this Ordinance.

SECTION 4. Powers and Duties of Tribal Solid Waste Program Manager

The specific duties of the Tribal Solid Waste Program Manager shall include:

(A) Assisting the Department of Environmental Protection in developing the Tribe's

Solid Waste Management Plan pursuant to the requirements of the Ordinance; the

SWDA; 40 CFR Parts 257 and 258; and 40 CFR Part 239. The goal of this plan shall

be the proper collection and disposal of all solid waste on 40 CFR Parts 257 and 258

and this Ordinance.

(B) The development of rules and regulations and guidance documents which

supplement the technical standards and criteria for the location, construction, design,

operation, closure, and post-closure requirements for MSWLF's and which also

provide the technical standards and criteria for the collection and transportation of

solid wastes.

(K) Upon complaint by any person which establishes reasonable grounds, or upon its

own motion, the Department of Environmental Protection shall investigate the

activities of any permittee under this Ordinance. In conducting an investigation, the

Department of Environmental Protection shall have the authority, without reasonable

notice, if necessary, to enter into the permittee's place of business, operation or

facility, to inspect any books or records of the permittee, to inspect any of the

permittee's property or sites of possible pollution and to take samples. In addition, the

Department of Environmental Protection may require, or monitor such tests as it

deems necessary, to ensure that the provisions of this Ordinance or any permit

conditions are being complied with by any owner/operator of an MSWLF, or

transporter of solid waste. Such authority may be exercised by the Department of

Environmental Protection, including any authorized employee, agent or representative

of the Department of Environmental Protection, and including any agents of the U.S.

Environmental Protection Agency who are specifically authorized by the Department

of Environmental Protection. The Department of Environmental Protection shall, in

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addition, have those powers and duties set forth herein regarding compliance

monitoring of permittee’s.

The Department of Environmental Protection or its agents are authorized to investigate

the activities of any person who is suspected of violating or being in violation of any

provisions of this Ordinance, any rules or regulations promulgated hereunder or any

permit conditions.

CHAPTER 4. SOLID WASTE MANAGEMENT PLAN AND

CONSIDERATIONS

SECTION 1. Approval of Plan

Within 180 days of the passage of this Ordinance, the Department of Environmental

Protection shall present to the Board of Directors for its approval a Solid Waste

Management Plan (Plan).Within thirty (30) days of its presentation by the Department

of Environmental Protection to the Board of Directors, the Department of

Environmental Protection shall publicize the existence of the Plan and make it widely

available to all interested persons. Within sixty (60) days of its presentation, the

Department of Environmental Protection shall hold public hearings at locations of its

choice to permit interested parties to comment on the proposed Plan. The Plan, as

proposed by the Department of Environmental Protection, shall go into effect, and the

Department of Environmental Protection shall commence its implementation, upon

approval by the Board of Directors.

(B) All regulated hazardous waste as defined herein.

(C) Unregulated small quantity generator hazardous wastes.

(D) Infectious biomedical wastes which includes human tissue or human anatomical

remains.

(E) Animals or bedding exposed to infective agents.

(F) Sharps, needles, and lancets which have not been contained for disposal in

leakproof, rigid, puncture-resistant containers such as cartons or metal cans which are

taped closed or tightly lidded to preclude loss of contents under severe compact

conditions.

(G) Bulk quantities of infectious-type wastes including blood, blood products, and

body fluids.

(H) Any materials containing friable asbestos waste from building demolition or

cleaning, and any friable asbestos materials.

(I) Sewage or sewage sludge wastes.

(J) Bulk liquids of any kind.

SECTION 2. Contents of Plan

(K) Polychlorinated biphenyls (PCBs).

The Plan should include, at a minimum, those items listed in Section 303(A) of this

Ordinance.

(L) Car batteries.

(M) Used oil.

SECTION 3. Household Hazardous Waste

(N) 55 gallon drums.

The Department of Environmental Protection shall include a study regarding the

disposal of household hazardous waste on the Dry Creek Rancheria, as part of the

Tribe's Solid Waste Management Plan. Such study shall include an analysis of the

economic feasibility of the separate collection of household hazardous waste, and

disposal of household hazardous wastes at duly authorized facilities other than at an

MSWLF on the Dry Creek Rancheria. If economically feasible, the Department of

Environmental Protection may issue rules and regulations for the collection and lawful

disposal of household hazardous wastes generated on the Dry Creek Rancheria other

than at an MSWLF on the Dry Creek Rancheria.

SECTION 4. Prohibited Materials

The following solid waste materials shall not be accepted at any MSWLF on the Dry

Creek Rancheria under any conditions:

(O) Explosives.

(P) Tires.

(Q) Oil or gas exploration wastes.

The Department of Environmental Protection may prohibit the disposal of other solid

wastes at MSWLFs on the Dry Creek Rancheria as it deems necessary in its discretion,

under rules and regulations to be adopted by the Department of Environmental

Protection. The Department of Environmental Protection shall issue rules and

regulations governing the disposal or prohibition of disposal of other solid wastes not

listed herein, including, but not limited to ashes, powders, mineral wastes and soils.

The Department of Environmental Protection shall develop rules and regulations for

special wastes, which require special handling, treatment, and disposal.

(A) Radioactive wastes.

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SECTION 5. Prohibition on Disposal in Open Dumps

In order to protect the limited land, air and water resources of the Dry Creek

Rancheria from irremediable hazardous pollution and to protect the health, safety, and

welfare of all residents of the Dry Creek Rancheria and surrounding communities,

disposal of solid waste in any open dump is expressly prohibited within the exterior

boundaries of the Dry Creek Rancheria.

SECTION 6. Solid Waste Facility Sites

(a) "Fault" means any fracture or a zone of fractures in any

material along which strata on one side have been displaced with

respect to that on the other side.

(b) "Displacement" means the relative movement of two sides of a

fault measured in any direction.

(c) "Holocene" means the most recent epoch of the Quaternary

period extending from the end of the Pleistocene Epoch to the

present.

(A) Site Considerations.

(1) Airport Safety. No solid waste disposal site or landfill may be located

within 10,000 feet of any airport runway end used by jet aircraft, or within

5,000 feet of any airport runway end used only by piston-type aircraft,

unless the owner/operator demonstrates that the units are designed and

operated so that the MSWLF unit does not pose a bird hazard to aircraft. The

owner or operator of the facility shall demonstrate in the facility plan that

the facility is designed and operated so that it does not pose a bird hazard to

aircraft and place this demonstration in the operating record. Any owner or

operator who operates an MSWLF within a five mile radius of any airport

runway end used by turbojet or piston-type aircraft must notify the affected

airport and the appropriate Federal Aviation Administration office in

writing.

(2) Floodplains. If a solid waste disposal site or landfill is located within a

100 year floodplain, the owner or operator must demonstrate that the

MSWLF will not restrict the flow of a 100 year flood, reduce the temporary

storage capacity of the floodplain or result in any washout of solid waste

which would pose a hazard to human health or the environment.

(3) Wetlands. "Wetlands" means those areas which are defined in 40 C.F.R.

§232.2(r) and include, but are not limited to, swamps, marshes, bogs and

similar areas, and are defined as those areas that are inundated or saturated

by surface or groundwater at a frequency and duration sufficient to support,

and that under normal conditions do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions. No MSWLF shall be

located in wetlands, unless the owner/operator can make the demonstrations

as required under the Federal criteria set forth in 40 C.F.R. §258.12. The

Department of Environmental Protection may, in its discretion, however,

refuse to permit an MSWLF in any areas which are wetlands as defined

herein.

(4) Fault Areas. No solid waste disposal facility or landfill shall be located

within 200 feet (60 meters) of a fault that has had displacement in Holocene

time. For purposes of this section:

(5) Seismic Impact Zone. No solid waste disposal facility or landfill shall be

located in a seismic impact zone unless the owner/operator demonstrates to

the satisfaction of the Department of Environmental Protection, and the

Department of Environmental Protection finds, that all containment

structures, including liners, leachate collection systems, and surface water

control systems, are designed to resist the maximum peak ground

acceleration associated with the maximum credible earthquake. For purposes

of this Section, "seismic impact zones" are defined as areas having a 10

percent or greater probability that the maximum expected horizontal

acceleration in lithifield earth material, expressed as a percentage of the

earth's gravitational pull (g), will exceed 0.10 g in 250 years.

(6) Unstable Areas. No solid waste disposal facility or landfill shall be

located in an unstable area. "Unstable area" means a location that is

susceptible to natural or human-induced events or forces capable of

impairing the integrity of some or all of the landfill structural components

responsible for preventing releases from a landfill.

Unstable areas can include poor foundation conditions, areas susceptible to

mass movements, and Karst terrains.

(7) Bodies of Water. No solid waste disposal site or landfill shall be located

within 1,000 feet of a lake, pond, slough, river, stream, or other body of

water. To the greatest extent possible, MSWLFs will be located at

substantially greater distances from any surface water of significance.

(8) Adverse Impact. No MSWLF shall be located in a manner that will cause

significant adverse impact to recreational opportunities, wildlife habitat,

populations, or Dry Creek Rancheria aesthetics.

(9) Dwellings. To the greatest extent possible, taking into account the

requirements of this Ordinance, no MSWLF shall be located within 3,000

feet of a dwelling inhabited at the time the site is created.

(10) Domestic Water Well. No solid waste disposal site or landfill shall be

located within 2,000 feet of a domestic water well, unless the Department of

Environmental Protection determines in writing that the well will not be

contaminated by the site and establishes a water monitoring program for the

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well, or the Department of Environmental Protection provides a substitute

water source of equal or better convenience and quality.

B) Determination Prerequisites for Rancheria of Site.

The following information shall be submitted to the Department of Environmental

Protection for review and evaluation in order for a potential solid waste landfill site to

be considered:

(1) A map or aerial photograph of the proposed site that shows all land

within one mile of the proposed MSWLF site. The map or aerial photograph

shall be of sufficient scale to show the entire property owned or leased for

the disposal site by the person proposing the landfill, all homes, industrial

buildings, wells, watercourses, rock outcroppings, roads, other applicable

details and shall indicate the general topography.

(2) A summary of the geological formations and groundwater table to a

depth of at least ten feet below the proposed excavation and at lowest

elevation at the site. Such data shall be obtained by soil borings or other

appropriate means.

(3) Identification of source and characteristics of cover material.

(4) Identification of watercourses within or adjacent to the proposed disposal

site and, if no watercourse is involved, name of the watershed which will

receive the drainage from the site.

(5) Any other information pertinent to the proposed site.

SECTION 7. Storage

(A) Sanitary Site Conditions: The owner, agent, or occupant of any dwelling,

residence, premises or business establishment shall be responsible for the sanitary

condition of said residence, premises, or business establishment. No person shall place

or deposit refuse or allow refuse to be placed or deposited on any public street, road or

alley within the Dry Creek Rancheria.

(E) Hazardous Waste: No owner, occupant, business establishment or agency shall

store hazardous waste within the boundaries of the Dry Creek Rancheria. It shall be

the responsibility of each occupant, business establishment, or agency to locate a

disposal service operating an EPA-approved site which accepts hazardous material

and to arrange for its disposal.

SECTION 8. Collection

All persons and business entities are responsible for their own collection and disposal,

unless an alternative is established by the Tribe.

SECTION 9. Disposal

(A) Applicability of Standard: This Ordinance shall apply to all MSWLFs and to all

equipment used at disposal facilities on the Dry Creek Rancheria. In addition, 40 CFR

§§258.20 through 258.29 are incorporated by reference herein. All owner/operators of

MSWLFs shall comply with Part 258 Criteria, in addition to any additional waste

management operating criteria specified in this Ordinance, rules or regulations, or in

any conditions in the MSWLF facility operation permit, or in guidance documents, or

in orders of the Department of Environmental Protection.

(B) Prohibition on Hazardous Waste: The receipt, acceptance, handling, storage,

processing, or disposal of hazardous waste at any MSWLF for disposal on the Dry

Creek Rancheria is prohibited, provided that the Department of Environmental

Protection may establish a program for the collection, transfer, storage, transportation

and disposal off the Dry Creek Rancheria of hazardous waste generated or found on

the Dry Creek Rancheria. If an operator knows or has reason to believe that hazardous

waste has been received at a solid waste disposal facility, the operator shall notify

Department of Environmental Protection within two (2) hours of discovery of such

waste. The owner or operator of a solid waste disposal facility shall implement a

program to detect and prevent the receipt, acceptance, handling, storage, processing,

or disposal of hazardous waste. This program must include at a minimum:

(1) Random inspections of incoming loads;

(2) Inspection of suspicious loads;

(B) Storage of Solid Waste for Collection: The owner, agent, or occupant of any

dwelling, residence, premises, or business establishment shall be responsible for the

storage and stockpiling of all solid waste accumulated for collection and disposal.

(3) Maintenance of records of inspections;

(C) Container Specifications: Commercial establishments shall be required to store

garbage in durable, rust-resistant, non-absorbent and easily cleanable containers with

close-fitting covers. Residents who transport solid waste to community transfer

stations shall be required to haul their solid waste in such a way that it does not result

in littering or wind-swept garbage.

(5) Procedures for notifying the Department of Environmental Protection if

hazardous waste is discovered at the facility.

(D) Ashes: Ashes, warm or cold, shall not be placed in plastic containers.

(4) Training of personnel to recognize hazardous waste; and

(C) Design: The uniform design criteria for MSWLFs contained in 40 CFR §258.40

are incorporated by reference for new MSWLFS. If the EPA has not approved the

Tribe's solid waste program, then no new MSWLF unite or lateral expansions shall be

constructed unless they comply with Part 258 uniform design criteria, which includes

11

a composite liner and a leachate collection system as set forth in 40 CFR

§258.40(a)(2).

If the EPA has approved the Tribe's solid waste program, the Department of

Environmental Protection may approve the design criteria for an MSWLF, on a sitespecific basis, in accordance with 40 CFR §258.40(a)(1).

The relevant point of compliance specified by the Department of Environmental

Protection shall be no more than 150 meters from the waste management unit

boundary and shall be located on land owned by the owner of the MSWLF unit. In

determining the relevant point of compliance the Department of Environmental

Protection shall consider at least the following factors:

(1) The hydrogeologic characteristics of the facility and surrounding land;

If the Tribe does not have an EPA approved solid waste program, then the uniform

design criteria in 40 CFR §258.40(a) (2) shall apply as follows, unless the Department

of Environmental Protection determines that the small landfill exemption under 40

CFR §258.I (f) (1) applies, and that an MSWLF unit is exempt from the design criteria

under Subpart D of 40 CFR Part 258.

(2) The volume, physical, and chemical characteristics of the leachate;

(3) The quantity, quality, and direction of flow of ground water;

(4) The proximity and withdrawal rate of the groundwater users;

(1) There must be a composite liner, as defined in paragraph (2) below, and

a leachate collection system that is designed and constructed to maintain less

than a 30-cm depth of leachate over the liner.

(2) "Composite liner" means a system consisting of two components; the

upper component must consist of a minimum 30 mil flexible membrane liner

(FML), and the lower component must consist of at least a two-foot layer of

compacted soil with a hydraulic conductivity of no more than 1 x 10-7,

cm/sec. FML components consisting of high density polyethylene (HDPE)

shall be at least 60-mil thick. The FML component must be installed in

direct and uniform contact with the compacted soil component.

If EPA has approved the Tribe's solid waste program, then the design performance

criteria in this section applies, and a composite liner and leachate collection system are

not required, but the Department of Environmental Protection may require the same in

his/her discretion.

If the Tribe has an EPA approved solid waste program, or an MSWLF unit is

determined to be exempt from Subpart D of 40 CFR Part 258, then the Department of

Environmental Protection in approving an alternative design for an MSWLF, must

consider at least the following factors:

(1) The hydrogeologic characteristics of the facility and surrounding land;

and

(2) The climatic factors of the area; and

(3) The volume, physical, and chemical characteristics of the leachate.

In addition, any site-specific design must ensure that the concentration values for

chemicals listed in Table I of 40 CFR Part 258, which is incorporated by reference

herein, will not be exceeded in the uppermost aquifer at the relevant point of

compliance, as specified in 40 CFR §258.40(d) as follows:

(5) The availability of alternative drinking water supplies;

(6) The existing quality of the ground water, including other sources of

contamination and their cumulative impacts on the ground water and

whether the ground water is currently used or reasonably expected to be

used for drinking water;

(7) Public health, safety, and welfare effects; and

(8) Practicable capability of the owner/operator.

The design of an MSWLF site shall also be based on the service area, anticipated

nature and quantity of solid waste to be received, adjacent land uses, number and type

of vehicles anticipated to enter the disposal facility site, whether the facility will be

used by the general public, ground and surface water, leachate control, soils, drainage,

provisions for monitoring, venting, controlling and possible use of disposal facility

decomposition gases, and other pertinent information. The owner or operator shall

design the disposal facility to maximize the protection of public health.

The MSWLF design shall include one or more proposed ultimate uses of the site or the

intent to develop the site as open space graded to harmonize with the setting and

landscape of native shrubbery or low-maintenance ground cover.

(D) Records: Copies of all reports, records, analytical data, and other documents

required by this Ordinance shall be maintained at the disposal facility, unless the

Department of Environmental Protection has authorized storage of the records at an

alternative location.

The owner or operator shall maintain records of weights, volumes, and types of solid

waste accepted at the facility, and shall be adequate for overall Protection and control

purposes, and for forecasting the rate of filling. The owner or operator shall maintain

adequate records regarding length and depth of any cuts made in natural terrain where

fill will be placed, together with the depth to the groundwater table. The owner or

12

operator shall also adequately record other cuts that may affect the safe and proper

operation of the disposal facility or cause damage to adjoining properties.

The owner or operator shall maintain a log of the following: fires, earthslides, unusual

or sudden settlement, personal injury, property damage, accidents, explosions,

deliveries or discharge of hazardous waste or other materials not permitted at the

disposal facility site, flooding, vandalism, contamination, pollution, and other unusual

occurrences. The owner or operator shall maintain inspection records, training

procedures, and notification procedures required herein. The owner or operator shall

record and permanently maintain closure and post-closure maintenance plans as

required by this Ordinance, any cost estimates, financial assurance documentation, and

information demonstrating compliance with the small community exemption as

required by 40 CFR §258. 1(f) (2).

Disposal facility records shall be open to inspection by authorized representatives of

the Department of Environmental Protection, and other regulatory and enforcement

agencies during normal business hours. If information is identified as proprietary or

confidential pursuant to this Ordinance, the Department of Environmental Protection

shall treat it as such.

(E) Personnel: The owner or operator shall provide adequate numbers of qualified

personnel to staff the disposal facility and deal effectively and promptly with matters

of operation, maintenance, environmental controls, records, emergencies, and health

and safety. Such personnel shall be adequately trained in the operation and

maintenance of a disposal facility, including health, safety, and environmental controls

and emergency procedures. The owner or operator shall provide adequate supervision

to insure proper operation of the disposal facility and compliance with requirements of

this Ordinance. The owner or operator shall advise the Department of Environmental

Protection of the names, addresses, and telephone numbers of the owner or operator,

the disposal facility manager, and the supervisor. Any disposal facility that is open to

the public shall have an attendant on duty during operating hours.

(F) Security: The disposal facility shall have an adequate perimeter barrier designed to

discourage unauthorized entry by persons or vehicles. Areas within the disposal

facility where open storage or ponding of material occurs or which the Department of

Environmental Protection deems hazardous shall be separately fenced and properly

identified to create an adequate level of security.

(G) Roads: Roads serving the disposal facility shall have reasonably smooth surfaces

designed to minimize the generation of dust and the tracking of material onto adjacent

paved public roads. Such roads shall allow vehicles using the disposal facility to have

reasonable all-weather access to the facility. Roads within the disposal facility site

shall be kept in safe condition, maintained such that vehicle access and unloading can

be carried on during inclement weather, and identified with suitable signs showing

direction to the operating area.

(H) Communications Facilities: The owner or operator shall provide communications

facilities available to users and disposal facility personnel to allow quick response to

emergencies by the appropriate authorities and emergency services.

(I) Lighting: The owner or operator shall equip the disposal facility and/or equipment

with adequate lighting to insure safety and to permit monitoring of the effectiveness of

cover and compaction operations.

(J) Fire Fighting-Equipment: The owner or operator shall keep adequate fire

suppression equipment available at the disposal facility at all times.

(K) Confined Unloading: The owner or operator shall confine unloading of solid waste

to as small an area as practicable and provide adequate control and collection of

windblown material. The owner or operator shall deposit solid waste at the toe of the

fill or as otherwise approved by the Department of Environmental Protection.

(L) Spreading and Compacting: The owner or operator shall spread and compact solid

waste in layers with repeated passages of equipment to eliminate voids within the cell

that may produce potential harborage for vectors as rapidly as practicable. The loose

layer shall not exceed a depth of two feet before compaction.

(M) Slopes and Cuts: The owner or operator shall maintain the slope of the working

face at a ratio that will allow effective compaction of the solid waste. The depth of the

cuts and slopes of trench sides shall not exceed horizontal to vertical ratios approved

by the Department of Environmental Protection.

(N) Stockpiling: The placement of stockpiled cover material or unsuitable native

material shall not interfere with unloading, spreading, compacting, access, safety,

drainage, or other operations.

(O) Daily Cover: In order to prevent propagation, harborage, or attraction of vectors,

to control disposal facility fires and to prevent the creation of nuisances, the owner or

operator shall compact cover material to a minimum thickness of six (6) inches and

place cover material over all surfaces of the compacted solid waste at the disposal

facility on a daily basis or at more frequent intervals if required by the Department of

Environmental Protection. The Department of Environmental Protection may establish

different cover and compaction requirements for special operating practices, including,

but not limited to, disposal of shredded waste. Daily cover shall be designed and

constructed to minimize percolation of precipitation through wastes.

(P) Liquid Waste: The owner or operator may accept liquid waste and sewage sludge

at the disposal facility only as specifically approved by the Department of

Environmental Protection.

(Q) Dead Animals: Dead animals may be accepted at a disposal facility only as

specifically approved by the Department of Environmental Protection.

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(R) Nuisance Control: The owner or operator shall operate and maintain the disposal

facility to prevent nuisance.

(S) Dust Control: The owner or operator shall take all necessary measures to minimize

the creation of dust.

(T) Contact With Water: The owner or operator shall not deposit solid waste in such a

manner that it has direct contact with either surface water or groundwater.

(U) Explosive Gas Control: The owner or operator shall implement all necessary

measures to prevent concentrations of methane gas at levels in excess of the

requirements of this Ordinance.

(V) Maintenance: Maintenance procedures and programs for equipment and site

facilities shall be developed and followed throughout the active life and the closure

and post-closure maintenance periods of all solid waste disposal facilities.

The owner or operator shall frequently monitor and promptly repair or correct

deteriorated or defective conditions in order to meet the requirements of this

Ordinance and the permit conditions. The owner or operator shall develop and follow

effective preventive maintenance procedures and programs for disposal facility

equipment and facilities.

The owner or operator shall notify the Department of Environmental Protection at

least ten (10) days prior to completion or suspension of work at a disposal facility so

that a site inspection may be conducted prior to removal of earth moving equipment.

The owner or operator shall, at the beginning of disposal facility use and upon closure

of the facility, file a detailed description of the disposal facility, including, but not

limited to, a map with the Department of Environmental Protection and the Bureau of

Indian Affairs.

(W) Containment Structures: Containment structures shall be designed by and

construction shall be supervised and certified by a registered civil engineer or a

certified engineering geologist, and the Department of Environmental Protection shall

conduct a final inspection and approve of the construction before use of the disposal

facility commences. The owner or operator shall maintain the integrity of containment

structures. Excavations made as part of disposal operations shall not result in removal

of any portion of a containment structure.

Material used in containment structures shall have appropriate chemical and physical

properties to ensure that such structures do not fail to contain solid waste because of

pressure gradients, physical contact with solid waste or leachate, chemical reactions

with soil and rock, climate conditions, stress of installation, or the stress of daily

operation.

Permeabilities specified for containment structures other than cover shall be relative to

the liquids, including solid waste and leachate, to be contained. Permeabilities

specified for final cover shall be relative to water.

(X) Liners: Liners shall be installed to cover all natural geologic material at a disposal

facility likely to be in contact with solid waste or leachate and shall be made of highdensity polyethylene or clay sufficient for the containment of the types of solid waste

to be disposed of at the disposal facility.

SECTION 10. Periodic Review of Plan

From the date of issuance of the permit, at least once each year, or more frequently as

determined by the Department of Environmental Protection, the owner or operator

shall cause a registered civil engineer to review the disposal facility design,

implementation, and operation plan to determine if any revisions are necessary and to

estimate the remaining facility life. The conclusions and recommendations of this

review shall be presented in a report and filed with Department of Environmental

Protection.

CHAPTER 5. RESOURCE RECOVERY PROGRAM

SECTION 1. Policy and Program

Tribal policy shall be that solid wastes which are reusable shall be recycled if

economically feasible. The Department of Environmental Protection shall include a

study regarding the recycling of solid wastes on the Dry Creek Rancheria, as part of

the Tribe's Solid Waste Management Plan. Such study shall include an analysis of

technological and economically feasible systems for the collection, separation

containerization and marketing of solid wastes that are recyclable. The study shall

identify potential markets for recyclable solid wastes. The Department of

Environmental Protection shall issue rules and regulations for the recycling of solid

wastes on the Dry Creek Rancheria based on the study.

CHAPTER 6. PERMIT AND INSPECTION PROGRAM

SECTION 1. Solid Waste Facility and Transportation Permits

Tribally chartered corporations or agencies, private enterprises and any other persons

are required to obtain a permit from the Department of Environmental Protection to

either collect and transport solid waste or to construct or operate a municipal solid

waste landfill within the exterior boundaries of the Dry Creek Rancheria. Any

permittee shall be required to comply with this Ordinance and any rules or regulations

promulgated there under, all Tribal environmental standards and criteria, all relevant

guidance documents, all permit conditions, all orders issued by the Department of

Environmental Protection under authority of this Ordinance, and all applicable federal

or Tribal laws, environmental in nature or otherwise.

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No tribally chartered corporation or agency, private enterprise, or person may collect

or transport solid waste, or construct or operate an MSWLF within the exterior

boundaries of the Dry Creek Rancheria without first having obtain from the

Department of Environmental Protection either: (1) a solid waste collection and

transportation permit; or (2) a solid waste facility construction and/or operation

permit. Any qualified tribally chartered corporation, agency private enterprise or

person may file an application with Department of Environmental Protection for a

permit to collect and transport solid waste, or to construct and/or operate an MSWLF

on the Dry Creek Rancheria.

SECTION 2 Permits for the Construction and Operation of MSWLFs

Any application for a permit to construct and/or operate an MSWLF must contain all

of the following information, tests, and data that are necessary to demonstrate that the

permittee will comply with all of the provisions of this Ordinance; the SWDA; 40

CFR Part 258; and all solid waste rules or regulations, technical standards or criteria or

applicable guidance documents. In addition, the Department of Environmental

Protection may require that a permittee acquire or perform such additional

information, tests or studies as he/she deems reasonably necessary to demonstrate

compliance with this Ordinance.

The permit application to construct and/or operate an MSWLF must contain the

following minimum information:

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

(B) A title report showing ownership of the site of the proposed facility and all

encumbrances, covenants, conditions, restrictions, Rancherias to title, easements, and

rights of way on or across the site.

(C) Proof that the applicant is the owner or holds an interest or lease in the proposed

site; that all taxes, fees, and lease payments are current; and if not, that the applicant

has a notarized consent of the owner approving the use of the land for the purposes set

forth in the application; approval from the Board of Directors; and if the land is leased

or permitted under Title 25 of the United States Code, approval of the Secretary of the

Interior or his/her authorized delegate, and a certified copy of the lease or permit, with

all exhibits and attachments thereto.

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

(E) A map and aerial photograph of the area to be used for the MSWLF showing all

land use and political jurisdiction within five miles of the land fill site. The map and

aerial photograph shall be of sufficient scale to show all homes, airports, wells, water

ways, topography, roads and other objects that may be affected.

(F) A report indicating the following:

(1) The population and area to be served by the proposed site and life

expectancy of the facility;

(2) The geological formation, aquifer characteristics, and groundwater

elevations below the lowest elevation of the site. Such data will be obtained

by soil boring and other appropriate means;

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

(4) Reliable data on existing ground water quality within 2,000 feet of the

site;

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

(6) Location of the 100 year flood plain as approved by the Department of

Environmental Protection in relation to the site.

(G) A design and plan of operation for the facility, certified by a professional

engineer, which identifies how the landfill will meet the standards and criteria of the

Ordinance and 40 CFR Part 258 for the location, design, performance, operating

standards, groundwater monitoring, closure, post-closure and financial assurance

requirements. The design shall also include one or more topographic maps with

contour intervals. The maps should show the proposed fill area, borrow areas, access

roads, drainage areas, fencing, equipment, buildings, and the groundwater monitoring

systems.

(H) A financial statement, estimating the cost of construction, operation, closure and

post-closure of the site, explaining the applicant's financial condition and the

applicant's ability to fund the continued operation, closure and post-closure of the site

in compliance with the Ordinance and the financial assurance requirements of 40 CFR

Part 258.

(I) An identification statement certified as to its truth and accuracy, signed by the

applicant, and notarized, containing the following information:

(1) Name, address, social security number, and phone number of all persons

owning or holding an interest in the applicant of 5% or more;

(2) Name, address, social security number, and phone number of all officers,

directors or partners;

(3) A statement that no officer, director, partner or holder of an interest of

5% or more has ever been convicted of a felony, and that no felony charges

are currently pending;

(4) A statement which discloses in detail any charge, complaint, fine, order,

decree, statement, or finding of "no contest" for violation of any Tribal,

federal, state, county or municipal environmental or health law, regulation,

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permit or condition against any officer, director, partner or holder of an

interest of 5% or more within the past five (5) years, including the

jurisdiction, disposition, name, address, and phone number of the person

who filed the original charge or complaint, and the name of the director,

board, administrative body, judge, justice of the peace, magistrate, or

arbitrator who levied or entered any fine, order, penalty, decree, statement,

or finding.

A solid waste operation facility permit shall be valid for the operation, closure, and

post closure period designated and required for such MSWLF, but such permit is

subject to revocation, suspension, or modification as provided herein. Any condition

imposed on any solid waste construction and/or operation facility permit issued by the

Department of Environmental Protection may only be modified after a public hearing

which is duly noticed regarding modification of such permit.

SECTION 3. Permits for the Collection and Transportation of Solid Waste

(J) A current financial statement of the applicant's net worth, including a description of

major assets, liabilities, and any other financial information requested by the

Department of Environmental Protection.

(K) A description of any judgments rendered against any officer, director, partner, or

holder of an interest of 5% or more in the applicant for five (5) years preceding the

date of the application.

(L) A description of any bankruptcy or insolvency proceedings instituted by any

officer, director, partner or holder of an interest of 5% or more in the applicant for five

(5) years preceding the date of application.

The Department of Environmental Protection shall not issue a solid waste construction

and/or operation facility permit unless the Tribe has issued a land use permit, or lease,

authorizing the operation of the MSWLF facility.

The Department of Environmental Protection may issue a solid waste construction

and/or operation facility permit, only if it finds, on the basis of information contained

in the application and otherwise available to it, and only after conducting a public

hearing as specified herein, that the applicant will comply with the Ordinance; the 40

CFR Part 258 Criteria; and all rules or regulations, technical standards and criteria,

guidance documents and permit conditions.

The Department of Environmental Protection must also find that the applicant has the

financial and technical ability to construct and/or operate, close and post-close the

MSWLF as required by the Ordinance.

As a condition for the issuance of a solid waste collection and transportation permit,

the Department of Environmental Protection shall require every vehicle operated by

the transporter to be conspicuously marked to identify the solid waste transported.

Every vehicle shall be marked with the trade name of the transporter, and the number

of the solid waste transportation permit issued pursuant to this Section. Every vehicle

and driver must be licensed by the State of California and must comply with all safety

and insurance requirements of the State of California.

As a condition for the issuance of a solid waste collection and transportation permit, a

transporter agrees to make an annual report by December 1 of each year to the

Department of Environmental Protection indicating the number and type of

installation emptied or cleaned, the volume and nature of solid waste disposed of, the

place and manner in which such solid waste was finally disposed and such other

information as the Department of Environmental Protection may require. A renewal

may be denied by the Department of Environmental Protection for failure of the

permittee to properly and timely file such annual report.

Solid waste permits for the collection and transportation of solid waste must be

renewed annually by the Department of Environmental Protection on a calendar basis.

The Department of Environmental Protection shall adopt rules and regulations for

solid waste collection and transportation on the Dry Creek Rancheria, including the

operation of transfer stations, and may impose whatever condition it deems reasonably

necessary to protect the environment, and the health, safety, and welfare of the Tribe

and its members before issuing any permit under this section.

SECTION 4. Public Hearing on MSWLF Permit Application

The burden of proof shall rest on the applicant to demonstrate compliance with all

Tribal solid waste criteria and requirements. The issuance or denial of any permit by

the Department of Environmental Protection is completely discretionary. In issuing

any permit, the Department of Environmental Protection may impose permit

conditions which are more stringent than provided under the Ordinance, if such are

reasonably necessary. The Department of Environmental Protection shall not issue a

solid waste construction and/or operation facility permit, unless it is convinced that the

primary consideration of the permittee is to prevent environmental damage and protect

the public health. The long-term protection of the Tribe's public health, environment,

and natural resources shall be a critical consideration for the Department of

Environmental Protection's issuance or denial of a permit.

No solid waste construction and/or operation facility permit shall be issued unless

there has been a public hearing conducted by the Department of Environmental

Protection at which the applicant and all interested persons shall have an opportunity

to present relevant evidence and be heard on whether the permit should be granted, or

whether there are any special conditions which should be included in such permit. All

applications for a solid waste construction and/or operation facility permit, including

all documentation required for such permit, shall be available for public review and

inspection at least sixty (60) days in advance of the hearing. The Department of

Environmental Protection shall publish weekly notice of such public hearing on each

application beginning at least sixty (60) days in advance of the hearing in the most

widely circulated newspaper on the Dry Creek Rancheria for three consecutive weeks.

The Department of Environmental Protection shall also post notice of the public

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hearing near the proposed permanent site for an MSWLF, but viewable to the public,

at least sixty (60) days in advance of the hearing. The Department of Environmental

Protection may designate issues it deems most relevant for the public hearing in the

public notice, but the Department of Environmental Protection shall consider all issues

which are raised at the hearing. The public hearing shall be continued until all persons

have had an opportunity to present their views.

SECTION 5. Oath and Application Filing Fees

Each report and application filed shall be signed or notarized under oath in a form

approved by the Department of Environmental Protection. Each application shall be

accompanied by a reasonable filing fee established by the Department of

Environmental Protection to reflect the Tribe's costs of processing the application or

preparing an environmental assessment, the public notice and hearing and the costs of

technical and legal consultants to review the application, prepare the permit, exhibits

and guidance documents.

SECTION 6. Other Fees and Taxes

In order to recover operating costs, the Tribe may impose reasonable fees on each

permittee who constructs or operates an MSWLF, or collects and transports solid

waste. Any fees to be imposed by the Tribe shall be specifically referred to in each

permit. In addition, the Tribe may impose taxes on each permittee who operates an

MSWLF, or collects and transports solid waste. The payment of such fees or taxes

shall be a condition of maintaining such permit.

CHAPTER 7. CLOSURE; POST-CLOSURE, AND FINANCIAL

ASSURANCES

SECTION 1. Closure Care Requirements for MSWLFs

The owner or operator of an MS WLF which has received solid waste after October 9,

1991, must install a final cover system that is designed to minimize infiltration and

erosion in compliance with 40 CFR §258.60.

The final cover system as set forth in 40 CFR §258.60(a) must be comprised of an

erosion layer underlain by an infiltration layer as follows:

(A) The infiltration layer must be comprised of a minimum of 18 inches of earthen

material that has a permeability of less than or equal to the permeability of any bottom

liner system or natural subsoil’s present, or a permeability no greater than 1 x 10-1

cm/sec, whichever is less; and

(B) The erosion layer must consist of a minimum of 6 inches of earthen material that

is capable of sustaining native plant growth.

If EPA approves the Tribe's solid waste program, then the Department of

Environmental

Protection may approve an alternative final cover design under 40 CFR §258.60(b)

that includes:

(A) An infiltration layer that achieves an equivalent reduction in infiltration as the

infiltration layer specified in §258.60(a) (1); and

(B) An erosion layer that provides equivalent protection from wind and water erosion

as the erosion layer specified in §258.60(a) (2). This alternative final cover design may

not be applied to landfills which ceased to receive solid waste on or after October 9,

1993.

The owner or operator must prepare a written closure plan that describes the steps

necessary to close an MSWLF unit at any point during its active life in accordance

with the cover design requirements. The closure plan, at a minimum, must include the

following information:

(A) A description of the final cover and the methods and procedures to be used to

install the cover;

(B) An estimate of the largest area of the MSWLF unit ever requiring a final cover at

any time during the active life;

(C) An estimate of the maximum inventory of wastes ever on-site over the active life

of the landfill facility; and

(D) A schedule for completing all activities necessary to satisfy the closure criteria in

§258.60.

The owner or operator must notify the Department of Environmental Protection that a

closure plan has been prepared and placed in the operating record by the date of the

first receipt of solid waste.

Prior to beginning closure of each MSWLF unit, the owner or operator must notify the

Department of Environmental Protection that a notice of intent to close the unit has

been placed in the operating record.

The owner or operator must begin closure activities of each MSWLF unit no later than

30 days after the date on which the MSWLF unit receives the known final receipt of

wastes or, if the MSWLF unit has remaining capacity and there is a reasonable

likelihood that the MSWLF unit will receive additional wastes, no later than one year

after the most recent receipt of waste. Extensions beyond the one-year deadline for

beginning closure may be granted by the Department of Environmental Protection, if

the Tribe has an EPA approved solid waste program, and if the owner or operator

demonstrates that the MSWLF unit has the capacity to receive additional wastes and

the owner or operator has taken and will continue to take all steps necessary to prevent

threats to human health and the environment from the unclosed MSWLF unit.

The owner or operator of any MSWLF unit must complete closure activities of each

17

MSWLF unit in accordance with the closure plan within 180 days following the

beginning of closure as specified in 40 CFR §258.60(f). Extensions of the closure

period may be granted by the Department of Environmental Protection, if the Tribe

has an EPA approved solid waste program, and if the owner or operator demonstrates

that closure will, of necessity, take longer than 180 days and he/she has taken and will

continue to take all steps to prevent threats to human health and the environment from

the unclosed MSWLF unit.

Following closure of each MSWLF unit, the owner or operator must supply the

Department of Environmental Protection with a certification signed by an independent

registered professional engineer that verifies that closure has been completed in

accordance with the closure plan, and shall place such certification in the operating

record.

The Department of Environmental Protection shall take whatever action is reasonably

necessary in perpetuity to notify any potential users or purchasers of the landfill

facility property that the land has been used as a landfill facility and that its use is

restricted under 40 CFR §258.61(c)(3). Post-closure use of the property shall not

disturb the integrity of the site, final cover, liner(s) or monitoring systems, unless

necessary to comply with requirements under 40 CFR Part 258.

(B) The length of the post-closure care period may be:

(1) Decreased by the Department of Environmental Protection if the Tribe

has an EPA approved solid waste program and if the owner or operator

demonstrates to the satisfaction of the Department of Environmental

Protection that the reduced period is sufficient to protect human health and

the environment; or

(2) Increased by the Department of Environmental Protection if the

Department determines that the lengthened period is necessary to protect

human health and the environment.

(C) The owner or operator of an MSWLF unit must prepare a written post-closure plan

that includes, at a minimum, the following information:

(1) A description of the monitoring and maintenance activities required in 40

CFR §258.61(a) for each MSWLF unit, and the frequency at which these

activities will be performed; and

(2) The name, address, and telephone number of the person or office to

contact about the facility during the post-closure period; and

SECTION 2. Post-Closure Care Requirements for MSWLFs

(A) Following closure of each MSWLF unit, the owner or operator must conduct postclosure care. Post-closure care must be conducted for thirty (30) years, except as

provided under Paragraph B of this section, and must include the following:

(1) Maintaining the integrity and effectiveness of any final cover, including

making repairs to the cover as necessary to correct the effects of settlement,

subsidence, erosion, or other events, and preventing run-off from eroding or

otherwise damaging the final cover; and

(3) A description of the planned uses of the property during the post-closure

period. Post-closure use of the property shall not disturb the integrity of the

final cover, liner(s), or any other components of the containment system, or

the function of the monitoring systems unless necessary to comply with the

requirements in 40 CFR Part 258. The Department of Environmental

Protection may, if the Tribe has an EPA approved solid waste plan, approve

any other disturbance if the owner or operator demonstrates that disturbance

of the final cover, liner, or other component of the containment system,

including any removal of waste, will not increase the potential threat to

human health or the environment.

(2) Maintaining and operating the leachate collection system in accordance

with the requirements in 40 CFR §258.40. The Department of

Environmental Protection may allow the owner or operator to stop managing

leachate if the owner or operator demonstrates that leachate no longer poses

a threat to human health and the environment;

(D) The owner or operator must notify the Department of Environmental Protection

that a post-closure plan has been prepared and placed in the operating record prior to

the initial receipt of waste by the facility.

(3) Monitoring the ground water in accordance with the requirements of

Subpart E of 40 CFR Part 258 and maintaining the groundwater monitoring

system; and

(E) Following completion of the post-closure care period for each MSWLF unit, the

owner or operator must supply the Department of Environmental Protection with a

certification signed by an independent registered professional engineer which verifies

that all post-closure care has been completed in accordance with the post-closure plan,

and shall place such certification in the operating record.

(4) Maintaining and operating the gas monitoring system in accordance with

the requirements of 40 CFR §258.23.

SECTION 3. Financial Assurance Requirements for Closure, Post-Closure and

Corrective Action

Owners or operators of MSWLFs on the Dry Creek Rancheria are required to comply

with the financial assurance criteria under Subpart G of 40 CFR Part 258, which are

18

incorporated herein and contained at 40 CFR §258.71 (Financial Assurance for

Closure); 40 CFR §258.72 (Financial Assurance For Post-Closure Care); 40 CFR

§258.73 (Financial Assurance for Corrective Action); and 40 CFR §258.74 (Allowable

Mechanisms To Demonstrate Financial Assurance).

The cost estimate for post-closure care must be based on the most expensive cost of

postclosure care during the post-closure care period.

During the active life of the MSWLF unit and during the post-closure care period, the

owner or operator must annually adjust the post-closure cost estimate for inflation.

(A) Financial Assurance for Closure.

The owner or operator of an MSWLF must have a detailed written estimate, in current

dollars, of the cost of hiring a third party to close the largest area of each MSWRLF

unit ever requiring a final cover as required under 40 CFR §258.60 at any time during

the active life in accordance with the closure plan. The owner or operator must notify

the Department of Environmental Protection that the estimate has been placed in the

operating record.

The cost estimate must equal the cost of closing the largest area of an MSWLF unit

ever requiring a final cover at any time during the active life when the extent and

manner of its operation would make closure the most expensive, as indicated by its

closure plan.

During the active life of the MSWLF unit, the owner or operator must annually adjust

the closure estimate for inflation.

The owner or operator must increase the closure cost estimate and the amount of

financial assurance provided, if changes to the closure plan or MSWLF unit conditions

increase the maximum cost of closure at any time during the remaining active life. The

owner or operator may reduce the closure cost estimate and the amount of financial

assurance provided under Section B herein, if the cost estimate exceeds the maximum

cost of closure at any time during the remaining life of the MSWLF unit. The owner or

operator must notify the Department of Environmental Protection that the justification

for the reduction of the closure cost estimate and the amount of financial assurance has

been placed in the operating record.

The owner or operator must increase the post-closure care cost estimate and the

amount of financial assurance provided if changes in the post-closure care plan or

MSWLF unit conditions increase the maximum cost of post-closure care. The owner

or operator may reduce the post-closure care cost estimate and the amount of financial

assurance provided if the cost estimate exceeds the maximum costs of the post-closure

care remaining over the post-closure care period. The owner or operator must notify

the Department of Environmental Protection that the justification for the reduction of

the postclosure care cost estimate and the amount of financial assurance has been

placed in the operating record.

The owner or operator of each MSWLF unit must establish financial assurance for the

costs of post-closure care of the MSWLF unit in compliance with 40 CFR §258.74.

The owner or operator must provide continuous coverage and financial assurance for

post-closure care until released from financial assurance requirements for post-closure

care by demonstrating compliance with 40 CFR §258.61(e).

(C) Financial Assurance for Corrective Action.

An owner or operator of an MSWLF unit required to undertake a corrective action

program under 40 CFR §258.58 must have a detailed written estimate, in current

dollars, of the cost of hiring a third party to perform the corrective action in

accordance with the program required under 40 CFR §258.58. The corrective action

cost estimate must account for the total costs of corrective action activities as

described in the corrective action plan for the entire corrective action period. The

owner or operator must notify the Department of Environmental Protection that the

estimate has been placed in the operating record.

The owner or operator of each MSWLF unit must establish financial assurance for

closure of the MSWLF unit in compliance with 40 CFR §258.74. The owner or

operator must provide continuous coverage for closure until released from financial

assurance requirements by demonstrating compliance with 40 CFR §258.60(h) and (i).

The owner or operator must annually adjust the estimate for inflation until the

corrective action program is completed in accordance with 40 CFR §258.58(f).

(B) Financial Assurance for Post-Closure Care.

The owner or operator must increase the corrective action cost estimate and the

amount of financial assurance provided if changes in the corrective action program or

MSWLF unit conditions increase the maximum cost of corrective action.

The owner or operator must have a detailed estimate, in current dollars, of the cost of

hiring a third party to conduct post-closure care for the MSWLF unit in compliance

with the post-closure plan developed under 40 CFR §258.6 1. The post-closure cost

estimate used to demonstrate financial assurance must account for the total costs of

conducting post-closure care, including annual and periodic costs as described in the

post-closure plan over the entire post-closure care period. The owner or operator must

notify the Department of Environmental Protection that the estimate has been placed

in the operating record.

The owner or operator may reduce the amount of the corrective action cost estimate

and the amount of financial assurance provided if the cost estimate exceeds the

maximum remaining costs of corrective action. The owner or operator must notify the

Department of Environmental Protection that the justification for any reduction of the

corrective action cost estimate and the amount of financial assurance has been placed

in the operating record.

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The owner or operator of each MSWLF unit required to undertake a corrective action

program under 40 CFR §258.58 must establish, in a manner in accordance with 40

CFR §258.74, financial assurance for the most recent corrective action program. The

owner or operator must provide continuous coverage and financial assurance for

corrective action until released from financial assurance requirements for corrective

action by demonstrating compliance with 40 CFR §258.58(f) and (g).

If any surety bond is used, the surety company issuing the bond must, at a minimum,

be among those listed as acceptable sureties in federal bonds in Circular 570 of the

U.S. Department of the Treasury.

If any letter of credit is used, the issuing institution must be an entity which has the

authority to issue letters of credit and whose letter of credit operations are regulated

and examined by a federal agency.

(D) Allowable Financial Mechanisms.

40 CFR §258.74 requires that an owner or operator of an MSWLF unit provide

financial assurance to ensure that funds necessary to meet the costs of closure, postclosure care and corrective action for known release will be available in a timely

fashion when they are needed. There are four mechanisms available to provide

financial assurance, including a trust fund; a surety bond; a letter of credit; an

insurance policy; or a combination of the four mechanisms. Any mechanism(s) that

is/are used by an owner or operator must comply with all of the criteria in 40 CFR

§258.74, which is incorporated by reference herein, and must be legally valid, binding

and enforceable under state, federal and Tribal law.

The financial assurance mechanism(s) must be obtained by the owner or operator

before the initial receipt of waste in the case of closure and post-closure care cost

estimates; and no later than one hundred twenty (120) days after the corrective action

remedy has been selected in accordance with the requirements of 40 CFR §258.58,

and maintained as required by 40 CFR §§258.71-74. The Department of

Environmental Protection must approve the actual financial assurance mechanism(s)

and financial assurance agreements that is/are provided by the owner or operator.

The Department of Environmental Protection may also require in its discretion, in

addition to the criteria for financial assurance under 40 CFR Part 258, that an owner or

operator provide financial assurance for corrective action for other than known

releases as a condition for issuing an MSWLF permit.

The Department of Environmental Protection shall also require that liability and

property damage insurance coverage be provided by an owner or operator for claims

arising from personal injury or property damage, including any claims arising from

releases from an MSWLF unit.

If a trust fund mechanism is used, the trustee must be an entity who has the authority

to act as a trustee, and whose trust operations are regulated and examined by a federal

agency. Trust fund payments must be made as specified in 40 CFR §258.74 criteria.

The Department of Environmental Protection must approve the terms of any trust

agreement which is to be used as a financial assurance mechanism. The trust

agreement shall be irrevocable. Trust funds shall only be released to reimburse the

owner or operator for closure, post-closure and corrective action costs actually

incurred, but only if sufficient funds remain in the trust to cover the remaining costs.

CHAPTER 8. ENFORCEMENT PROGRAM/ADMINISTRATIVE

PROCEDURES

SECTION 1. Enforcement Policy

It is the policy of the Department of Environmental Protection to encourage informal,

practical, result-oriented resolution of alleged violations and actions needed to prevent

damage to Dry Creek Rancheria resources or harm to the health, safety or welfare of

the Dry Creek Rancheria population. It is also the policy of the Department of

Environmental Protection, consistent with the principles of due process, to provide

effective procedures for enforcement.

SECTION 2. Enforcement Agency

The Department of Environmental Protection shall be responsible for enforcing the

provisions of this Ordinance. Specifically, the Department of Environmental

Protection shall conduct investigations when a complaint is received by the

Department of Environmental Protection or another Tribal agency believes that a

violation of this Ordinance has occurred.

SECTION 3. Enforcement Activities

Where a written and verified complaint shall be filed with the Department of

Environmental Protection and reviewed by the Department of Environmental

Protection alleging that, or where the Department of Environmental Protection itself

shall have cause to believe that, any person is violating any solid waste regulation or

permit condition, the Department of Environmental Protection shall cause a prompt

investigation to be made.

SECTION 4. Notice of Violation; Cease and Desist Order

If the Department of Environmental Protection finds after an investigation pursuant to

Section 803 of this Ordinance that a violation of any regulation or permit condition

exists, the Department of Environmental Protection shall promptly notify both the

alleged violator and the Board of Directors in writing.

In the case of an apparent violation of this Ordinance, the Department of

Environmental Protection is authorized to issue a Notice of Violation to the person(s)

apparently responsible for the violation, and, if the apparent violation occurred on

20

property owned by a person other than the alleged violator, a Notice of Violation shall

also be issued to the landowner.

In the case of a continuing violation or a threatened violation, the Department of

Environmental Protection is authorized to issue a Cease and Desist Order to prevent

the violation from continuing or occurring.

Failure to comply with a Cease and Desist Order shall constitute a violation of this

Ordinance. Both a Notice of Violation and a Cease and Desist Order may be issued for

a single incident. A Notice of Violation will include a Summons to appear before the

Department of Environmental Protection at an enforcement hearing at a specified time

and date, and shall advise the alleged violator that failure to appear may result in the

imposition of civil penalties.

(A) Burden of Proof. The Department of Environmental Protection shall have the

burden of proving that a violation of this Ordinance has occurred and that a person

charged was responsible for the violation. The Board of Directors shall rule that a

violation of this Ordinance has occurred if it finds that the charges are supported by

substantial evidence and that a preponderance of the credible evidence supports a

finding that a violation has occurred.

(B) Enforcement Orders. Within thirty (30) days after the date of any enforcement

hearing, the Tribal Court shall issue a written decision. If the Board of Directors

determines that a violation has occurred and that the person(s) charged was (were)

responsible for the violation, the Board of Directors decision shall include an

Enforcement Order.

SECTION 8. Civil Penalties and Corrective Action

If a Cease and Desist Order is issued without an accompanying Notice of Violation,

the Order will inform the recipient that failure to comply with the Order will constitute

a violation of this Ordinance which will result in the issuance of a Notice of Violation

and may result in the imposition of civil penalties.

SECTION 5. Informal Conferences

The Department of Environmental Protection shall afford the landowner or his or her

representative reasonable opportunities to discuss proposed enforcement actions at an

informal conference prior to taking further enforcement action, unless the Department

of Environmental Protection determines that there may be either imminent

environmental damage to a Dry Creek Rancheria resource or adverse impact upon the

health, safety and welfare the Dry Creek Rancheria population. Informal conferences

may be used at any stage of the enforcement proceedings, except that the Department

of Environmental Protection may refuse to conduct informal conferences with respect

to any matter then pending before the Department of Environmental Protection.

SECTION 6. Reports Required

The Department of Environmental Protection shall keep written notes of the date and

place of the conference, the persons in attendance, the subject matter discussed and

any decisions reached with respect to further enforcement action.

SECTION 7. Enforcement Hearings

If the landowner and the Department of Environmental Protection are unable to

resolve the matter via an informal conference, the Department of Environmental

Protection is authorized to conduct adjudicatory hearings to determine if a violation of

this Ordinance has occurred. In such a hearing the Department of Environmental

Protection Director, in cooperation with the Solid Waste Manager shall present the

case to the Board of Directors to establish that the person(s) charged has (have)

committed a violation of this Ordinance. Any person so charged shall be entitled, at

his or her own expense, to be represented by an attorney or other representative.

An Enforcement Order shall direct any person(s) found to have committed a violation

of this Ordinance to take whatever corrective action the Board of Directors deems

appropriate under the circumstances. An Enforcement Order may impose civil

penalties in accordance with a schedule of civil penalties prescribed in the Department

of Environmental Protection's rules.

Alternatively, an Enforcement Order may impose civil penalties in the event that a

person found to have committed a violation of this Ordinance does not take corrective

action in accordance with the Order within a prescribed time frame. If a person who

has been found to have committed a violation does not take corrective action within

the prescribed time frame, an appropriate department or agency of the Tribal

government may take the necessary corrective action, in which case the amount of any

civil penalty shall be increased by twice the amount of the cost incurred by the Tribal

department or agency in taking the corrective action.

(A) Emergency Orders. Notwithstanding any other provision of this Ordinance, if the

Board of Directors determines that noncompliance with this Ordinance is presenting

an imminent and substantial threat to the public health, welfare or environment and

determines, in consultation with the Tribe's attorneys, that it is not practicable to

assure prompt protection of the public health, welfare or environment of an

administrative or judicial enforcement action under this Part, the Board of Directors

may issue such orders as may be necessary to protect the public health, welfare or

environment. Any such order shall be effective immediately upon issuance and shall

remain in effect for a period not to exceed sixty (60) days.

(B) Revocation of Permit. Failure of any person to comply with any Enforcement

Orders will result in an immediate revocation of his or her permit. In order to obtain a

reinstatement of such permit, the person(s) against whom the Enforcement Order was

issued must first demonstrate compliance with the Order and pay all outstanding

penalties and then petition for reinstatement of the permit with the Department of

Environmental Protection.

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CHAPTER 9. APPEALS

SECTION 9. Judicial Enforcement

The Tribal Court shall have jurisdiction of all cases and controversies arising under

this Ordinance.

(A) The Department of Environmental Protection may request the Board of Directors

to authorize the Department of Environmental Protection to file an action in Tribal

Court pursuant to this Ordinance for a temporary restraining order, a preliminary

injunction, a permanent injunction or any other relief provided by law, including the

assessment and recovery of civil penalties and clean up and administrative costs

associated with the enforcement of this Ordinance (except that any suit against the

Tribe or a tribal department or agency shall be for injunctive relief only and not for

penalties or other money damages), in any of the following instances:

(1) Whenever a person has violated, or is in violation of, any provision of

this Ordinance, including but not limited to a regulation, permit or order

issued pursuant to this Ordinance;

(2) Whenever a person submits false information under this Ordinance or

regulations promulgated under this Ordinance; or

(3) Whenever a person is creating an imminent and substantial

endangerment to the public health, welfare, environment or cultural

resources of the Tribe, in which case the Department of Environmental

Protection shall pursue injunctive relief but not the assessment of penalties,

unless the endangerment is caused by a violation, as specified in paragraphs

(1) and (2) above.

(B) Any person who in violation of this Ordinance stores, collects, transports or

disposes of any solid waste or hazardous waste within the boundaries of the Dry Creek

Rancheria shall be liable for all costs associated with or necessary to clean up, abate or

remove said waste from the Dry Creek Rancheria and restore the quality of the land

and waters of the Dry Creek Rancheria to their condition as they existed immediately

prior to the storage, collection, transportation or disposal.

SECTION 10. Special Provisions for Tribal Departments and Agencies

In any case in which the Board of Directors or any Tribal agency or department is

alleged to have violated the terms and conditions of a solid waste permit, or to have

conducted activities without a permit, the Department of Environmental Protection

Director shall bring the matter to the attention of Tribal Chairperson who shall

consider taking action to ensure compliance with this Ordinance. If the matter cannot

be resolved informally, the Department of Environmental Protection shall conduct an

enforcement hearing for the purpose of making factual determinations and issuing a

decision recommending a course of corrective action if necessary.

SECTION 1. Judicial Review

Any person who is aggrieved by the issuance or denial of a solid waste permit without

respect to whether that person, corporation or other entity is a party to such permit

application, or who is the subject of an Enforcement Order, may file an appeal with

the Tribal Court. The Court is authorized to hear such appeal.

CHAPTER 10. OTHER PROVISIONS

SECTION 1. Severability

If any provision of this Ordinance, or the application thereof, is held invalid, the

remainder of this Ordinance, or applications of such provisions, shall not be affected.

SECTION 2. Amendments

The Board of Directors reserves the sole right to amend this Solid Waste Disposal

Ordinance and to issue rules affecting all aspects of the Ordinance. Provisions in the

Ordinance allow the Board of Directors full flexibility to enact measures which will

benefit the Tribe. The inclusion of these provisions does not necessitate their

implementation, but allows the Board of Directors flexibility to alter the Ordinance

according to the evolving needs of the Dry Creek People.

SECTION 3. Modifications and Applicability of Part 258 Criteria

This Ordinance incorporates by reference all of the criteria contained in 40 CFR Part

258. If any part of 40 CFR Part 258 is modified, any modifications are automatically

incorporated by reference and become part of this Ordinance, and supercede any of the

provisions that were modified. If any of the Part 258 Criteria are not actually restated

in this Ordinance, they are nevertheless incorporated by reference and are applicable.

If the EPA approves the Tribe's solid waste program, then the Tribe has all of the

flexibility granted to it under the Part 258 Criteria, whether or not such flexibility is

specifically restated in this Ordinance. Any specific provisions of this Ordinance

which are more stringent than the Part 258 Criteria are applicable and controlling.

SECTION 4. Effective Date

This Ordinance shall become effective on the date approved by Tribe.

CHAPTER 11. SOVEREIGN IMMUNITY PRESERVED

SECTION 1. Sovereign Immunity Preserved

Nothing in this Ordinance is in tended to, nor should be interpreted as a waiver of the

Tribe's sovereign immunity from unconsented lawsuit, or as authorization for a claim

for monetary damages from the Tribe.

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APPENDIX A. PERMIT APPLICATION FORM

(Request application from the Dry Creek Rancheria DEP)

APPENDIX B. FLOW CHART OF ENVIRONMENTAL AGENCIES

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