SOLID WASTE AND HAZARDOUS WASTE MANAGEMENT ORDINANCE

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TITLE 16

SOLID WASTE AND HAZARDOUS WASTE MANAGEMENT ORDINANCE

TABLE OF CONTENTS

CHAPTER 1. PRELIMINARY PROVISIONS ............................................................................ 3

Section 16-1-1. Purpose and Scope. .......................................................................................... 3

Section 16-1-2. Authority, Jurisdiction and Applicability. ........................................................ 4

Section 16-1-3. Organization and Duties. .................................................................................. 5

Section 16-1-4. Integrated Solid Waste Management Plan (Integrated Plan). .......................... 7

Section 16-1-5. Definitions. ....................................................................................................... 8

CHAPTER 2. SOLID WASTE MANAGEMENT AND PROHIBITED ACTIVITIES. ........... 10

Section 16-2-1. Solid Waste Management Policy. .................................................................. 10

Section 16-2-2. Unauthorized or Prohibited Activities............................................................ 10

CHAPTER 3. SPECIAL AND INDUSTRIAL WASTES MANAGEMENT............................. 12

Section 16-3-1. Designation of Special and Industrial Wastes. ............................................... 12

Section 16-3-2. Management of Special and Industrial Wastes. ............................................. 12

Section 16-3-3. Types of Special and industrial Waste and Management Requirements. ...... 12

CHAPTER 4. HAZARDOUS WASTE AND BROWNFIELDS MANAGEMENT. ................. 17

Section 16-4-1. Hazardous Waste Disposal. ............................................................................ 17

Section 16-4-2. Hazardous Waste Management and Treatment Requirements. ..................... 17

Section 16-4-3. Tribal Hazardous Waste Standards. ............................................................... 17

Section 16-4-4. Types of Hazardous Waste. ............................................................................ 17

Section 16-4-5. Brownfields Tribal Response Program (“Brownfields Program”). ............... 18

Section 16-4-6. Remedial Actions by the Brownfields Program in Circumstances Posing an

Imminent Threat........................................................................................................................ 18

Section 16-4-7. Remedial Actions by the Brownfields Program for Failure to Perform ........ 18

Section 16-4-8. Liability of Owners, Operators and Other Persons. ....................................... 19

Section 16-4-9. Recovery of Expenditure of Tribal Funds. ..................................................... 19

Section 16-4-10. Remedial Action and Enforcement Orders .................................................. 19

Section 16-4-11. Accidental Release or Spill. ......................................................................... 20

Section 16-4-12. Remediation Standards................................................................................. 21

Section 16-4-13. Public Participation. ..................................................................................... 23

Section 16-4-14. Public Record. .............................................................................................. 24

Section 16-4-15. Verification and Documentation of Completion. ......................................... 24

Section 16-4-16. Certification of Completion. ........................................................................ 25

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Section 16-4-17. Covenant not to Sue. .................................................................................... 27

Section 16-4-18. No Further Action Letter (“NFA”)............................................................... 27

Section 16-4-19. Institutional Controls. ................................................................................... 27

Section 16-4-20. Re-openings or Terminations of Agreements. ............................................. 29

Section 16-4-21. Disputes and Appeals. .................................................................................. 30

Section 16-4-22. Remediation Fees Assessment. .................................................................... 30

CHAPTER 5. WASTE STORAGE, COLLECTION, TRANSFER AND TRANSPORTATION.

....................................................................................................................................................... 31

Section 16-5-1. Waste Storage. ................................................................................................ 31

Section 16-5-2. Waste Containers and Receptacles. ................................................................ 31

Section 16-5-3. Solid Waste Collection Services and Practices. ............................................. 32

Section 16-5-4. Waste Transportation. .................................................................................... 33

CHAPTER 6. GENERAL SOLID WASTE MANAGEMENT REQUIREMENTS, PERMITS,

AND FEES.................................................................................................................................... 34

Section 16-6-1. Commercial Waste Management. .................................................................. 34

Section 16-6-2. Waste Management Permits. .......................................................................... 34

Section 16-6-3. Waste Management Permit Fees. ................................................................... 34

Section 16-6-4. Prime Contractor Waste Management Permit Fee. ........................................ 35

Section 16-6-5. Non-payment of Permit Fees.......................................................................... 35

Section 16-6-6. Revenues from Permit Fees............................................................................ 35

Section 16-6-7. Emergency Permits. ....................................................................................... 35

Section 16-6-8. Waste Management Siting. ............................................................................ 35

Section 16-6-9. Perpetual Responsibility for Solid Waste and Liability for Pollution............ 35

CHAPTER 7. COMPLIANCE AND ENFORCEMENT. ........................................................... 37

Section 16-7-1. Authority, Duties and Responsibilities........................................................... 37

Section 16-7-2. Enforcement Actions. ..................................................................................... 38

Section 16-7-3. Civil Fines and Penalties. ............................................................................... 40

Section 16-7-4. Alternate or Other Civil Penalties or Remedies. ............................................ 41

Section 16-7-5. Removal of Improperly Disposed Solid Waste. ............................................. 42

Section 16-7-6. Civil Damages. ............................................................................................... 42

Section 16-7-7. Payment and Disposition of Civil Fines......................................................... 42

Section 16-7-8. Liability of Person(s) for Remedial Costs. ..................................................... 43

Section 16-7-9. Criminal Enforcement. ................................................................................... 43

LEGISLATIVE HISTORY .......................................................................................................... 44

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CHAPTER 1. PRELIMINARY PROVISIONS

Section 16-1-1. Purpose and Scope.

(a) Name of Title. This Title will be known and may be cited as Volume V, Title 16 of the

Flandreau Santee Sioux Tribal Law and Order Title and the Flandreau Santee Sioux Tribe

(FSST) Solid and Hazardous Waste Management Title (FSST-SHWMT).

(b) Purpose. To provide, within the jurisdiction of the Flandreau Santee Sioux Reservation

and other lands within the Tribe’s jurisdiction, for the establishment of a comprehensive

solid and hazardous waste management program to protect the health, safety, and wellbeing of residents; to regulate the storage, collection, transportation, disposal, treatment,

and management of solid and hazardous waste; to remediate any releases of a hazardous

substance pollutant or contaminant to protect the human health, public sanitation,

environment, and general aesthetics; and to inform and educate persons of the need to

participate fully in efforts to reduce the generation of solid and hazardous waste.

commercial businesses, manufacturing, construction, schools, governmental, and other

public facilities, and any persons engaged in the storage, collection, transfer, recycling,

disposal, and treatment of solid and hazardous waste on land within the Tribe’s

jurisdiction. This Title applies to any entity that does business, or has business on land

within the Tribe’s jurisdiction, including all oil and gas exploration and development, and

other types of mining and mineral extraction, processing, or other beneficiation activities.

(d) Prior Inconsistent Ordinances Repealed. Any and all ordinances of the FSST which

conflict in any way with the provisions of this Title are hereby repealed to the extent that

they are inconsistent with or conflict with, or are contrary to the spirit and/or purposes of

this Title. All prior ordinances and resolutions of the FSST Executive Committee

(Executive Committee) dealing with the same subject matter as this Title and Title are

repealed as of the effective date of this Title.

(e) Severability. If any provision of these Regulations or the application thereof to any

person or circumstances is held invalid, such invalidity will not affect any other

provisions or applications of these Regulations that can be given effect without the

invalid provision or application thereof, and to this end the provisions of these

Regulations are severable.

(f) Effective Date. This Title will be in full force and effect on the date of formal approval

and adoption by the Executive Committee and review as required by the Constitution and

will remain in effect until repealed or amended by the Executive Committee. Existing

facilities or persons subject to the permitting or other requirements of this Title will

comply with the requirements and deadlines for such existing facilities in this Title.

(g) Appropriations. Nothing in this Title will cause the FSST elected officials or the

Department of Natural Resources (DNR) Director to expend funds in excess of

appropriations or other available funds.

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Section 16-1-2. Authority, Jurisdiction and Applicability.

(a) Constitutional Authority. This Title is adopted pursuant to the authority vested in the

Executive Committee under the Constitution of the FSST. The FSST is a Federally

recognized Indian Tribe organized pursuant to the Indian Reorganization Act with a

Constitution and By-laws approved by the Secretary of Interior and Commissioner of

Indian Affairs. Article III, Section 1 of said Constitution and By-laws provides that the

governing body of the Tribe will be the Executive Committee and pursuant to Article

VIII, Section 1(f) of said revised Constitution and By-laws, the Executive Committee to

promulgate ordinances governing and regulating the conduct of all individuals on lands

subject to FSST jurisdiction. The FSST possesses the inherent sovereign authority to

enact this Title and no part of this Title constitutes a waiver of the sovereign immunity of

the Tribe.

(b) Jurisdiction. This Title will apply to all lands, air, surface water, and ground water within

the Tribe’s jurisdiction to the extent consistent with Federal law, including rights-of-way

running throughout the Reservation and other lands under the jurisdiction of FSST.

(1) Any person or company that has entered into a consensual agreement with the

Tribe or its members; or

(2) Any non-member where the conduct of the non-member threatens or has some

direct effect on the political integrity, economic security, health or welfare of the

Tribe or member; or

(3) Any member where the conduct of the member threatens or has some direct effect

on the political integrity, economic security, health or welfare of the Tribe or

member; and

(4) Any person subject to FSST Civil Actions pursuant to the FSST Law and Order

Title.

(d) Other Laws.

(1) Applicable Law and Regulations. Compliance with this Title and regulations

promulgated hereunder does not relieve a person of the obligation to comply with

other applicable laws and regulations. Where there is a gap in the Tribal law,

regulations or Titles, the Federal regulations cited in this Title will be

incorporated by reference, as determined applicable by the FSST or its designees.

If any part of a Federal law, Title or regulation cited or adopted by reference in

this Title is modified, any modifications are automatically incorporated by

reference and become part of this Title, and supersede any of the provisions that

were modified. The FSST reserves the right to be more stringent than the Federal

regulations or laws cited or adopted in this Title.

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(2) Citation or Use of Language from Other Laws. Citation to statutory or

administrative language, definitions, procedure, or provisions of Federal or State

law in this Title does not establish jurisdiction, which otherwise does not exist, in

such Federal or State government. Nothing in this Title may be deemed a waiver

of the FSST sovereign immunity, and if any Court of competent jurisdiction

construes this provision as conflicting with any other provision in this Title, then

this express retention of sovereign immunity will control and prevail.

(3) Consistency with Other Laws. This Title is intended to be consistent with the

minimum Federal requirements provided by Federal law to include, but not be

limited to, Clean Water Act; Safe Drinking Water Act; Resource Conservation

and Recovery Act; Clean Air Act; Toxic Substances Control Act; Federal

Insecticide, Fungicide, and Rodenticide Act; the Comprehensive Environmental

Response, Compensation and Liability Act; and the National Environmental

Policy Act.

Section 16-1-3. Organization and Duties.

(a) Executive Committee.

(1) Solid Waste Management. The Executive Committee will be responsible for the

DNR and the oversight of the FSST Solid Waste Management Program

(Program).

(2) Integrated Solid Waste Management Plan (Integrated Plan). Upon

recommendation of the DNR, the Executive Committee will commission and

approve an Integrated Plan to implement this Title. The Executive Committee

will review the Program and Plan on an annual basis and make amendments to the

plan, as needed.

(3) Grant of Franchises. Upon recommendation of the DNR, the Executive

Committee may grant and regulate franchises for the purpose of collection,

transfer and disposal of solid waste for those lands and facilities subject to the

jurisdiction of the FSST. Such franchises may be granted for a specific area or

facility(s). Such franchise may not be granted for a longer period than ten years.

(4) Agreements with other political subdivisions and persons. The Executive

Committee may enter into agreements with counties, municipalities, townships,

governmental agencies, private persons, trusts, or with any combination thereof to

provide a solid waste management services for all lands or facilities subject to

FSST jurisdiction or any portion thereof.

(5) Fees, Charges, and Permit Requirements. The Executive Committee may levy

and collect fees and charges and require permits, as recommended by the DNR

and Brownfields Program for the implementation, oversight, permitting,

compliance and enforcement of this Title. The fees, charges, and permits will be

based on a fee schedule set forth in a FSST Resolution and the Integrated Plan.

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All fees will be reviewed annually during the review of the Program and

Integrated Plan.

(6) Acceptance of funds for solid waste or recycling facility or system. The Executive

Committee may accept and disburse funds derived from grants from the Federal

or state governments, from private sources, from moneys that may be

appropriated from the general fund, or a combination thereof for the installation

and operation of a solid waste management system or facility, recycling facility,

or any portion of such a system or facility.

(7) More Restrictive Standards. The Executive Committee may by ordinance or

resolution adopt standards for the location, design, construction, and maintenance

of solid waste disposal sites and other waste management facilities more

restrictive than those in this Chapter, the Federal standards in the US Title of

Federal Regulations (CFR).

(b) Department of Natural Resources (DNR)

(1) Organization of the DNR. The DNR is led by a Director, or in the matters of solid

and hazardous waste, the Brownfields Program Director, as appointed by the

Executive Committee. The DNR and Brownfields Program will manage all

aspects of the Program, ensuring compliance and enforcement of this Title,

carrying out the directives of the Executive Committee, and preparing the annual

report. The Brownfields Program will make quarterly reports to DNR, the

Executive Committee, and the U.S. EPA on the status of the program.

(2) Assistance and Coordination. The DNR will assist and may receive assistance

from other Tribal departments or programs in the execution of their duties,

ensuring the compliance with this Title and in protection of the health, welfare

and environment of the residents of the FSST lands and members of the FSST.

The DNR will cooperate with state (as appropriate) and Federal agencies in the

development, implementation and maintenance of the Program activities, such as

permitting, inspection, compliance, enforcement, training, and regulatory

programs. The DNR may advise, consult, and cooperate with other agencies and

instrumentalities of the state, other states, and the Federal government and with

affected groups and industries in the implementation of solid waste disposal

programs.

(3) Power to administer grants and loans. Upon direction by the Executive

Committee, the DNR will administer such loans and grants from the Federal

government and from other sources as may be available to the program in

fulfillment of this Title and Chapter.

(4) Integrated Solid Waste Management Plan (Integrated Plan). The DNR will be

responsible for drafting, implementing and updating, as needed, the Integrated

Plan. The DNR will submit the draft Integrated Plan to the Land Committee and

Executive Committee for initial approval. Once approved, the DNR will provide

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the Land Committee and Executive Committee an annual report on the Program

and recommend amendments, as needed, to the Integrated Plan. The DNR may

engage other agencies or consultancies to assist in the preparation and updates of

the Integrated Plan.

(5) Solid Waste Training and Information. The DNR will collect, prepare, and

disseminate information and conduct educational and training programs that assist

in the implementation of this Title and Chapter. The work plan for training and

information dissemination will be outlined in the Integrated Plan, the annual

report will provide information on all the training and informational programs

conducted in fulfillment of the Program.

Section 16-1-4. Integrated Solid Waste Management Plan (Integrated Plan).

(a) Contents of Integrated Plan. The Integrated Plan is intended to guide current and future

waste management practices, evaluate priorities and options, and identify resources for

the Program. The Integrate Plan will include the following information:

(1) Introduction

(2) Community Service Area, including population, demographics, community

assets/resources, households, population projections, economy, climate,

geography, and geology and natural resources

(3) Solid Waste Management Program Structure and Administration

(4) Current and Proposed Waste Management Practices, including current waste

generators; amount and composition of waste; estimated future waste generation

growth; public awareness, training and information; unmanaged waste sites;

collection, transfer, disposal of solid, household, special and hazardous waste;

waste reduction and recycling practices; facilities; partnerships; and proposed

waste management practices

(5) Funding, Sustainability, and Long-Term Goals

(6) Approval of the Plan by the Executive Committee

(b) Approval of Plan. The Integrated Plan will be submitted to the Executive Committee by

the DNR for approval.

The DNR will prepare an annual report to the Executive Committee, including

recommendations for amendments to the Integrated Plan, as needed.

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Section 16-1-5. Definitions.

As used in this Title, the words and terms below will have the following meanings (Note: the

singular includes the plural and vice versa and the masculine includes the feminine and vice

versa):

(a) Tribal Organizational Definitions.

(1) “Brownfield Program” means the FSST Brownfields Program provided for under

Section 128(a) of 42 U.S.C. § 9601 et seq. (CERCLA). The FSST Brownfields

Program mission is to empower Tribal community and other stakeholders in

environmental protection working together in a timely manner to educate,

prevent, assess, safely cleanup and safely reuse brownfields. This program

includes the Tribal Response Program.

(2) “Department of Natural Resources” (DNR) means the Department responsible to

provide and ensure the proper management of all Tribal lands held in trust by the

United State Government. Through optimal resource management improve the

overall conditions and values of Tribal lands, whereby increasing the economic

and general welfare of all Tribal people. This DNR ensures that Tribal lands held

in trust are protected from waste and degradation, and environmental hazards. In

fulfillment of these responsibilities, the DNR manages the Solid Waste

Management Program or Program.

(3) “Executive Committee” means the Executive Committee of the Flandreau Santee

Sioux Tribe.

(4) “FSST” means the Flandreau Santee Sioux Tribe including any department or

agency thereof, or any business entity owned and operated by the FSST.

(5) “General Assistance Program (GAP)” means the Environmental Protection

Agency GAP, which has enabled Tribes to achieve significant progress in

establishing their environmental programs and have facilitated productive

government-to-government partnerships for Tribes and EPA, including the

establishment of baseline technical, administrative, and legal capacity for Tribal

environmental protection programs that respond to environmental issues affecting

Tribal lands.

(6) “Responsible authority” means the Director of a Tribal program or department

with authorities and responsibilities as delineated in this Title or the Executive

Committee.

(7) “Reservation” means the lands subject to the jurisdiction of the Flandreau Santee

Sioux Tribe.

(8) “Solid Waste Management Program (Program)” is a program within the DNR. It

is the Program responsible to provide and ensure the proper management of all

solid waste, including the collection, storage, and disposal of solid waste. It is

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responsible for providing technical support and recommendations to the DNR

Director, that is consistent with the requirements of this Title and the Integrated

Plan.

(9) “Tribal Response Program” means the FSST Program office responsible for the

investigation and remediation of a release, or threat of release, of a hazardous

substance, pollutant or contaminant, including controlled substances, petroleum

products and mining materials as provided for in this Title, in coordination with

other Tribal programs and as provided for under Section 128(a) of 42 U.S.C. §

9601 et seq. (CERCLA). This program includes the Brownfields Program.

(10) “Tribe” means the Flandreau Santee Sioux Tribe.

(b) General Definition of Terms. All general terms used in this Title, unless the context

otherwise plainly requires, will be defined in the Integrated Plan.

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CHAPTER 2. SOLID WASTE MANAGEMENT AND PROHIBITED ACTIVITIES.

Section 16-2-1. Solid Waste Management Policy.

The protection of the health, safety, and welfare of the FSST members and other residents and

the protection of the environment require the safe and sanitary disposal of solid waste. An

effective and efficient solid waste disposal program protects the environment and the public and

provides the most practical and beneficial use of the material and energy values of solid waste.

While recognizing the continuing necessity for the existence of landfills, alternative methods of

managing solid waste and the reduction in the reliance upon land disposal of solid waste are

encouraged. To promote these goals, the following solid waste management hierarchy, in

descending order of preference, is established as the solid waste management policy of the

FSST:

(a) Volume reduction at the source.

(b) Recycling and reuse.

(d) Disposal in landfills or combustion for volume reduction outside the exterior boundaries

of the reservation. No solid waste may be disposed of or combusted on lands subject to

the jurisdiction of the FSST.

In the implementation of this solid waste management policy, the FSST will establish and

maintain a cooperative Federal, state and local program to encourage comprehensive solid waste

management.

Section 16-2-2. Unauthorized or Prohibited Activities.

(a) Illegal or Open Waste Dumping. It is unlawful to dispose of solid waste in a manner

inconsistent with the provisions of this Title. No person may dump, deposit, drop, throw,

discard, leave, cause or allow such activities, leaving litter or waste upon any public or

private property or upon or into any river, lake, pond, or other stream or body of water

subject to the jurisdiction of the FSST. No person may transport by any means garbage or

refuse from any dwelling, residence, place of business, farm, or other site to and deposit

such material in, around, or on top of trash barrels or other receptacles placed at roadside

rest areas or recreation areas.

(b) Littering. Littering from a motor vehicle, or any other method of transportation, is

prohibited. No person may dump, deposit, drop, throw, discard, or otherwise dispose of

litter from any motor vehicle or any other method of transportation, upon any public

highway, upon any public or private property or upon or into any river, lake, pond,

stream, or body of water within the jurisdiction of the FSST except as permitted by law.

approved by the Executive Committee. The Permit will be consistent with the provision

of this Title.

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(d) Waste Accumulation. No person may allow litter to accumulate upon real property, of

which the person charged is the owner or tenant in control, in such a manner as to

constitute a public nuisance or in such a manner that the litter or waste may be blown or

otherwise carried by the natural elements onto the property of another person or the

FSST.

(e) Wrecked, Junked or Unserviceable Vehicles. No person or business may conduct,

maintain, or operate a motor vehicle wrecking or recycling facility, or junkyard, or store,

process or recycle inoperative or unused motor vehicles of a type required to be licensed,

or parts of such, without a Permit. Every person or business which processes or recycles

such inoperative or unused automobiles, trucks or other motor vehicles or parts will

obtain a business license from the FSST as required.

(1) Possession of unregistered or unserviceable vehicles at a single location in excess

of three (3) vehicles of a type required to be licensed is presumed to operate a

motor vehicle wrecking, recycling or salvage facility, requiring a Permit.

(2) No person may establish, operate, or maintain a motor vehicle storage, wrecking

or salvage facility, any portion of which is within one thousand (1,000) feet of the

nearest edge of the right-of-way of any interstate, state or U.S. highway, county,

BIA or Tribally maintained road, except:

i. Those that are screened by natural objects, planting, fences or other

appropriate means satisfactory to the Program, so as not to be visible from

the main traveled way of any such road; and

ii. Those that not visible from the main-traveled way of any such road.

(f) Unauthorized Waste Management Facilities. Unauthorized construction or operation of a

commercial waste management, storage, treatment or disposal site or facility is

prohibited.

(g) Unauthorized Waste from Outside the Reservation or Other FSST Lands. No person or

entity may dispose waste of any kind from outside the reservation on reservation lands or

other FSST lands.

(h) Misleading Representations. It will be a violation of this Title for any person to

knowingly omit material information or make any false statement or representation in any

label, record, report, or other document filed maintained or used for purposes or

application or compliance with this Title or permits issued there under.

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CHAPTER 3. SPECIAL AND INDUSTRIAL WASTES MANAGEMENT.

Section 16-3-1. Designation of Special and Industrial Wastes.

A specific type of solid waste may be designated as a Special or Industrial Waste by the

Executive Committee upon recommendation of the DNR and Brownfields Program. The Special

or Industrial Waste will be subject to the requirements of this Title, or other specific storage,

management or disposal requirements. Every person, commercial establishment, government

agency or facility or industrial facility who generates, treats, manages or stores Special or

Industrial Waste as described below within the lands subject to the jurisdiction of the FSST will

obtain applicable Permits and comply with this Title.

Section 16-3-2. Management of Special and Industrial Wastes.

The following Special and Industrial Wastes, that are not hazardous waste as defined in Chapter

4, will be managed as specified below and may be not stored, transferred, treated, disposed of or

discharged within the lands subject to the jurisdiction of the FSST except at a designated and

authorized transfer, treatment, storage or recycling facility specifically approved and permitted

by the FSST. No Special or Industrial Wastes may be disposed of on lands subject to the

jurisdiction of the FSST.

All Permits will be approved by the Executive Committee upon recommendation of DNR and

will be required for Special and Industrial Waste collection, transportation, management or

storage, whether the activity is a Tribal, personal or commercial enterprise.

Section 16-3-3. Types of Special and industrial Waste and Management Requirements.

(a) Septic Tank Pumping’s and Sewage Sludge. Such waste and other sanitary wastes are

designated as a special waste. A Permit is required for the commercial management,

transportation and disposal of such wastes.

(b) Used or Waste Oil. Used or waste motor or lubrication oil is designated as a special waste

and must be collected or transported for disposal to any solid waste collection, transfer or

storage unit or facility that is in full compliance with 40 CFR Part 279 and this Title. A

Permit is required for intermediate storage and recycling of these materials and all such

materials are appropriately segregated for recycling.

goods”) such as stoves, dish washers, refrigerators, washing machines, clothes dryers,

water heaters, are designated as Special Wastes. The owner or resident of a residential

property is responsible for proper storage or disposal of such item(s) as required under

this Title. A Permit is required for the commercial collection, transportation, and

disposal of Major Appliances Special Wastes. Refrigeration or air conditioning units

must have the refrigerant (i.e. Freon) removed by a certified technician in conformance

with applicable U.S. EPA and state regulations prior to or recycling. A Permit is required

for the temporary storage, including segregation for recycling, of such wastes. All

activities concerning such waste must be in compliance with the Title.

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(d) Lead-acid batteries. When discarded or deemed a waste, such batteries are designated as

a Special Waste. Disposal of lead acid batteries on land subject to the jurisdiction of the

FSST is prohibited. Batteries must be recycled in accordance with this Title or disposed

of by delivery to an automotive battery retailer or wholesaler, or to a collection or

recycling facility authorized under this Title or the State of South Dakota. A Permit is

required for an automotive battery retailer or wholesaler to manage the waste batteries

within lands subject to the jurisdiction of the FSST. An automotive battery retailer may

not dispose of a used lead acid battery except by delivery to the agent of a battery

wholesaler, to a battery manufacturer, to a collection or recycling facility authorized

under this Title or the laws of the State of South Dakota, or to a secondary lead smelter

permitted by the U.S. Environmental Protection Agency. Each battery improperly

disposed of will constitute a separate violation.

A person selling lead acid batteries at wholesale, retail or offering lead acid batteries for

retail sale within lands subject to the jurisdiction of the FSST will:

(1) Apply for and successfully obtain a permit from the Executive Committee, upon

recommendation of the DNR; and

(2) Accept, at the point of transfer, in a quantity at least equal to the number of new

batteries purchased per year, used lead acid batteries from customers, if offered by

customers; and

(3) Post written notice which will be at least eight and one-half (8 1/2) inches by

eleven (11) inches in size and will contain the universal recycling symbol and the

following language:

i. “It is illegal to discard a motor vehicle battery or other lead acid battery”;

ii. “Recycle your used batteries”; and

iii. “Tribal Laws require us to accept used motor vehicle batteries or other

lead acid batteries for recycling in exchange for new batteries purchased.”

(4) Failure to post the required notice will be a violation of this Title.

(5) Any person accepting batteries in transfer from an automotive battery retailer will

be allowed a period not to exceed one hundred twenty (120) days to remove

batteries from the retail point of collection.

(e) Infectious institutional wastes, medical wastes, laboratory wastes and surgical operating

room pathological specimens and disposal fomites. Such wastes are designated as Special

Waste. Disposal of such wastes on land subject to the jurisdiction of the FSST is

prohibited. A Permit must be obtained to handle such waste. These Special Wastes may

be generated by a medical service provider, any authorized health professional,

emergency rooms, or mortuary service provider. This Special Waste must be bagged in

Bio/Medical Waste bags or containers obtained from the Indian Health Service, other

authorized medical provider, or FSST that are clearly marked with the appropriate

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symbols and warnings. Regulated infectious waste may not be subject to mechanical

stress or compaction during loading, unloading, and transit.

(f) Farm and Ranch Wastes, including Pesticide and Herbicide Wastes. No provision of this

Title may be construed so as to prohibit a farmer or rancher from disposing of solid waste

from normal farming operations or ordinary domestic activities upon his own land,

provided such disposal does not create a nuisance or a hazard to public health, does not

violate a local ordinance, will not unlawfully pollute ground or surface waters or does not

violate the water or air pollution control laws of the United States.

Agricultural waste and products will be managed and stored as to minimize nuisance,

flies, rodents and odor, and will not result in the contamination of ground or surface

water sources. Such wastes that create a public nuisance or threaten the quality of ground

or surface waters may be designated as a Special Waste by the DNR and may require a

Permit.

Surplus agricultural pesticides or herbicides and/or pesticide or herbicide containers

intended for disposal are designated as a Special Waste if not regulated as a hazardous

waste pursuant to this Title. Every person, commercial or industrial facility who handles

surplus agricultural pesticides or herbicides and/or pesticide or herbicide containers will:

(1) Comply with this Title and 40 CFR Part 262. Surplus pesticides or herbicides may

not be discarded within the exterior boundaries of the Reservation in any manner

which endangers humans, animals, and/or the environment. Pesticide and

herbicide containers must be drained or emptied according to label directions and

power or triple-rinsed before processing or disposal; or

(2) A farmer or rancher disposing of waste pesticides from his own use which are

hazardous wastes will triple rinse each emptied pesticide container in accordance

with 40 CFR 261.7(b)(3) and may dispose of the pesticide residues on his own

farm or ranch in a manner consistent with the disposal instructions on the

pesticide label in a manner that does not endanger human health or the

environment. The DNR may impose additional restrictions or requirements or

prohibit such disposal to protect human health and the natural resources and

environment of the lands subject to the jurisdiction of the FSST.

(g) Dead Animals. Dead animals, to include livestock are designated as a Special Waste. A

Permit is required to dispose of more than 10 head at one time. Such waste must be

removed in a timely manner and be managed by renderers, disposed of at an authorized

or permitted solid waste landfill or at an alternative location designated by the DNR AND

BROWNFIELDS PROGRAM Director. Small pets will be buried or taken to an FSST

approved transfer or disposal site. During an emergency, potentially large numbers of

livestock may need to be managed as rapidly and as efficiently as possible. The FSST

may issue an emergency Permit in coordination with and at the recommendation of the

Program or DNR, for one-time disposal events based on various practical factors during

emergency conditions. The FSST and other local, state and Federal agencies will work

together with livestock owners to accomplish the efficient and environmentally sound

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disposal of animal carcasses and related materials to minimize impacts to human and

animal health and to water sources. Disposal under emergency Permits must be restricted

to dead animals and associated, generally inert waste, unless otherwise authorized.

(h) Used and Scrap Tires. Used or scrap tires are designated as a Special Waste. No such

tires may be disposed of at any location other than at a facility or site approved or

permitted under this Title or by the State of South Dakota. Tires may not be delivered to a

facility or location within the lands subject to the jurisdiction of the FSST that is not in

compliance with this Title or abandoned upon any street, alley, highway, public place or

private premises. Anyone hauling scrap tires to unapproved disposal sites (ravines,

coulees, dumps, gravel pits, tree rows, etc.) is in violation of this Title and subject to

enforcement action. If scrap tires are taken to a location which comes under enforcement

action, the transporter and/or the original generator(s) may also be liable for cleanup

costs.

(1) Individual persons may store outside up to a maximum of 4 tires for up to 90 days

for personal use on their own property or residence.

(2) Commercial businesses, public/Tribal agencies and tire dealers may store the

equivalent of a semi-truck load of whole or shredded scrap tires for transport to a

recycling or disposal facility must obtain a Permit for the management of used

and scrap tires. The Permit will address the location of temporary storage of tires,

transportation, and information about an end-user who will process, recycle

and/or dispose the materials in a manner that complies with the laws of the FSST.

(i) Abandoned Mobile Home or Trailer. Mobile homes or trailers that are an unsafe

structure, unfit for habitation, junked, partially dis-assembled, wrecked or non-operative

and which are abandoned or not inhabited for more than 180 days may be declared a

Special Waste by the DNR and must be managed accordingly and in full compliance with

this Title. The property owner will be provided a Warning Letter by the DNR to properly

repair, remove and/or dispose of the mobile home or trailer and any other applicable

Tribal, state or Federal regulations within 30 days of such declaration. Failure to comply

with this Warning Letter will result in further action by the Executive Committee. The

right to a hearing may be provided to the property owner to allow for repair of the mobile

home or trailer to make it safe and fit for habitation or to provide additional time to

dispose of the mobile home or trailer.

(j) Construction and Demolition Wastes. All construction or demolition wastes, and debris

are considered a Special Waste and must be properly disposed in an approved

Construction and Demolition Fill. A Permit must be obtained and the 1% fee on the gross

cost of the project must be paid by the private or commercial entity, conducting the

construction/demolition. Demolition of a structure over 100 square feet is subject to the

Permit requirements of this Title.

(k) Petroleum Contaminated Soils. Such wastes are considered Special Wastes. Petroleumcontaminated soils include wastes from petroleum operations, such as above or below

ground storage tanks, saltwater, crude oil, waste oil, or other oil or gas field exploration

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or production or liquid wastes may not be disposed of on lands subject to the jurisdiction

of the FSST. Any individual or commercial entity removing petroleum-contaminated

soils must obtain a Permit. All such wastes must be disposed in a solid waste

management facility which accepts petroleum-contaminated soils, to include soils from

removal of underground storage tanks, above ground or underground storage tanks or

related piping or systems leakage or spills, or oil and gas exploration or production

facilities for storage prior to treatment or disposal are subject to the requirements of this

Title.

(l) Misleading Representations. It will be a violation of this Title for any person to

knowingly omit material information or make any false statement or representation in any

label, record, report, or other document filed maintained or used for purposes or

application or compliance with this Title or permits issued there under.

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CHAPTER 4. HAZARDOUS WASTE AND BROWNFIELDS MANAGEMENT.

Section 16-4-1. Hazardous Waste Disposal.

No hazardous waste disposal will be conducted within lands subject to the jurisdiction of the

FSST.

Section 16-4-2. Hazardous Waste Management and Treatment Requirements.

All hazardous waste, as defined in this Title, and not excluded from regulation as a hazardous

waste under 40 CFR § 261.4(b) and that exhibits any of the characteristics of hazardous waste

identified in 40 CFR Part 261 Subpart C to include: ignitability; corrosivity; reactivity; or

toxicity; or is listed in 40 CFR Part 261 Subpart D; and has not been excluded from the lists in

Subpart D under 40 CFR §§260.20 and 260.22 will be generated, managed, stored, treated or

transported in compliance with this Title and 40 CFR Parts 262 thru 273.

Section 16-4-3. Tribal Hazardous Waste Standards.

The FSST reserves the right to be more stringent than the Federal regulations cited above to

include any Federal statutory or regulatory exemptions from the above regulations.

Section 16-4-4. Types of Hazardous Waste.

(a) Asbestos and Asbestos Containing Materials. Asbestos and asbestos-containing materials

are considered a Special Waste. Handling of regulated asbestos-containing material must

be performed by certified asbestos personnel, as certified by the State of South Dakota.

No disposal of asbestos and asbestos containing materials is allowed on lands subject to

the jurisdiction of the FSST. A Permit must be obtained and the 1% fee on the gross cost

of the project and must be paid by the commercial entity contracted for the removal,

transportation and disposal of asbestos and asbestos containing materials, conducted in

compliance with the applicable requirements of this Title, the Clean Air Act (42 U.S. C.

§§ 7401-7671) and U.S. EPA guidelines.

Asbestos disposal must be coordinated with the landfill approved to receive asbestos and

asbestos containing materials. Friable asbestos-containing material must be disposed into

landfills that have agreed to accept the material and have appropriate facilities,

procedures, equipment and training for managing such waste. Prior to shipping, friable

asbestos-containing material must be wetted. Friable asbestos-containing material must

be placed in leak-tight containers and be properly labeled.

(b) Coal Combustion Ash or Fly Ash. Large quantities (over nine (9) cubic feet) of wastes

generated primarily from the combustion of coal or other fossil fuels is considered a

Special Waste. A Permit will be required to store, treat, dispose, or used for

solidification or other treatment processes on lands subject to the jurisdiction of the

FSST. This Special Waste designation will also include Cement Kiln Dust.

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(TENORM). Wastes that are or contain radioactive materials or are Technically

Enhanced Naturally Occurring Radioactive Materials (TENORM) at concentrations

greater than 185 becquerel per kilogram (5 pico-Curies/gram or pCi/g) may not be

dumped, spilled, leaked, burned or otherwise stored or disposed of within the lands

subject to the jurisdiction of the FSST. TENORM includes naturally occurring

radioactive material whose radionuclide concentrations are increased by or as a result of

past or present human practices. TENORM does not include background radiation or the

natural radioactivity of rocks or soils. TENORM does not include "source material" and

"byproduct material" as both are defined in the Atomic Energy Act of 1954, as amended

(AEA 42 USC §2011et seq.) and relevant regulations implemented by the NRC. Such

wastes will be collected and/or transported for disposal off lands subject to the

jurisdiction of the FSST. All radioactivity levels will be measured using methods and

procedures approved by the DNR.

Section 16-4-5. Brownfields Tribal Response Program (“Brownfields Program”).

The Brownfields Program is part of the DNR and as such, may investigate, assess, respond and

remediate or require a responsible party to investigate, assess or remediate; a release, or threat of

release, of a hazardous waste, substance, pollutant, contaminant, petroleum product, controlled

substance or mining or oil and gas exploration or production activity materials that may pose a

threat to public health, welfare or the environment. This may include the verification of the

performance and results of a response or remedial action and the certification of the results or

completion of such action.

Section 16-4-6. Remedial Actions by the Brownfields Program in Circumstances Posing an

Imminent Threat.

If a release of a hazardous substance, pollutant or contaminant result from the management,

handling, treatment, storage, transportation or disposal of a solid, special or hazardous waste,

hazardous material, petroleum product, controlled substance or from mining or oil and gas

exploration or production activity poses an imminent threat to life or public health, the

Brownfields Program may:

(a) Perform such activities as are necessary to address the threat in cooperation with any

other Tribal, state, or Federal department agency;

(b) Conduct inspections and investigations as provided for in this Title; and

remedial activities required to mitigate the threat, subject to the approval of the Executive

Committee.

Section 16-4-7. Remedial Actions by the Brownfields Program for Failure to Perform.

Remedial action may be taken by the Brownfields Program in the absence of, or in addition to,

assessment, cleanup, abatement, or remedial activities by the site owner, operator or other

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persons in cooperation with any other Tribal, state, or Federal department or agency in the event

that the activities subject to a Tribal Order or Voluntary Remediation Agreement are not

satisfactorily performed or completed or where the Brownfields Program must take prompt

action to prevent hazards to human health or the environment at a site where a responsible party,

or other appropriate state or Federal authority, fails to act promptly.

Section 16-4-8. Liability of Owners, Operators and Other Persons.

Whenever the Brownfields Program determines that the operation of a solid waste management

facility or the collection or transportation of solid waste is causing or threatening to cause a

release of a hazardous substance, contaminant or pollutant or a condition of hazard, pollution, or

nuisance due to the migration of hazardous or solid waste, or for any other reason, the

Brownfields Program may require the operator of the solid waste facility or the solid waste

transporter to take corrective action necessary to abate any hazard, pollution, or nuisance or to

protect public health and safety and the environment. The owner or operator of the property or

business may be held liable for all damages and costs associated with the assessment,

investigation, cleanup, abatement, or remedial actions caused by such release or threat or release.

Section 16-4-9. Recovery of Expenditure of Tribal Funds.

In any case under this Section where the Brownfields Program expends funds to investigate,

assess, remediate, conduct oversight or contain contamination resulting from a spill or a release,

and where the Brownfields Program has identified a responsible party, the responsible party will

reimburse the Brownfields Program. If a release of a hazardous substance, pollutant or

contaminant is assessed, remediated, the effects thereof abated, or other necessary remedial

action is taken by the Brownfields Program as described above, the person or persons who

committed or allowed the improper disposal, action or release will be liable to Brownfields

Program for the reasonable costs actually incurred in cleaning up any solid or special waste,

hazardous waste or hazardous material, abating the effects thereof, monitoring , implementing

engineering controls or taking other remedial action. The amount of such costs will be

recoverable in a civil action in Tribal Court, together with the costs of suit incurred by FSST in

recovering such monies. A judgment ordering the payment of these costs to FSST may bear

interest.

Funds generated as a result of enforcement proceedings will be used to carry out environmental

education in classrooms, Tribal programs, and local agencies on FSST. Educational materials

may include information on reuse, reduce, recycle and requirements for the management and

disposal of solid and hazardous waste. Materials may also include information on the

Brownfields Program. Funds may be used to retain additional training by attending

meetings/trainings directly related to Brownfields, Solid, and Hazardous Waste Management.

Section 16-4-10. Remedial Action and Enforcement Orders.

Whenever the Brownfields Program determines that a person or responsible party is causing, has

caused or is threatening to cause a condition of hazard, pollution, or nuisance due to the release

or migration of a hazardous substance, pollutant or contaminant the Executive Committee upon

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recommendation of the DNR and Brownfields Program may issue an Order, pursuant to this

Title and Chapter, to take emergency action, cease or desist and/or require the person or

responsible party to take corrective or remedial action necessary to abate any hazard, pollution,

or nuisance or to protect public health and safety and the environment. Any person will, upon

such order, cease and desist any improper action, remediate a release of a hazardous substance,

pollutant or contaminant, abate the effects thereof, and take any other remedial action directed by

the Brownfields Program pursuant to this Section.

Section 16-4-11. Accidental Release or Spill.

In the event of an accidental release or spill of a hazardous substance, pollutant or contaminant to

the air, land or waters or groundwater of the Reservation resulting in a potential threat to the

public health, welfare or the environment within the lands subject to the jurisdiction of the FSST

the persons causing the release or the originating facility's or vehicle’s owner or operator must

implement the requirements of this Section to include:

(a) Timely and Appropriate Action. The persons causing the release or the originating

facility or vehicle owner or operator must take timely and appropriate action to include

notification of appropriate officials and government agencies as specified below. Failure

to take timely and appropriate action, as directed by this Section and the Brownfields

Program may result in enforcement action pursuant to this Title and other Tribal Laws or

Titles and/or referral to appropriate state or Federal agencies.

(b) Notification Requirements. Notification to the U.S. EPA is required where an accidental

spill or release of a hazardous substance, pollutant or contaminant has occurred within the

lands subject to the jurisdiction of the FSST; and

(1) The release poses a potential threat to the public health, welfare or the

environment; or

(2) The release exceeds 25 gallons or causes a sheen on surface water; or

(3) It exceeds any Tribal or Federal U.S EPA groundwater, surface water or drinking

water quality standards; or

(4) The release is required to be reported according to Superfund Amendments and

Reauthorization Act (SARA), Title III, § 304 (1986); or

(5) The Brownfields Program requires a notification of a release to be made.

believed to be the source of such a release of a hazardous substance, pollutant or

contaminant must notify the Brownfields Program, Tribal Police and appropriate Federal

authorities within twenty-four hours (24).

(d) Notification Information Required. All notifications and reports of an accidental release

or spill of any hazardous substance or pollutant will contain the following information, at

a minimum, to the best of the reporting person’s ability:

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(1) Name and telephone number of the reporting person;

(2) Name and address of the facility (or location of the spill or accident);

(3) Name of facility/vehicle owner contact if different than reporting person;

(4) Time and type of incident, for example spill, release, fire;

(5) Name, description and quantity of materials involved, to the extent known;

(6) The extent of any injuries, if known;

(7) The possible hazard to human health or the environment outside the facility or to

the nearby area;

(8) Description of actions taken to mitigate the release or spill; and

(9) Other authorities notified.

(e) Additional Reports. Subsequent to the initial report, the responsible person will

immediately notify the Brownfields Program of information that changes the accuracy of

the initial report. As directed by the Brownfields Program, the responsible person will

make additional reports verbally or in writing.

(f) Response Action Required. The owner or operator of a facility or a vehicle believed to be

the source of such a release or spill of a hazardous substance, pollutant or contaminant

must comply with the requirements of this Title and the Brownfields Program to address

the immediate and long-term impacts of the release or spill to include all necessary

containment, remediation, assessment of impacts and long-term monitoring.

Section 16-4-12. Remediation Standards.

Any voluntary or involuntary remedial action conducted by an owner, operator or responsible

party or a state or Federal government agency or by the Brownfields Program, will:

(a) Be protective of human health, safety and the environment. A remedy will be considered

to be protective of human health if it reduces risk to humans of acute and chronic toxic

exposures to contaminants to levels that do not pose a significant risk to human health. A

remedy will be considered to be protective of the environment if it adequately reduces

risk of significant adverse impacts to the ecology for which habitats have been identified

on or near the site. Remedies may meet this requirement through a combination of

removal, treatment, monitored natural attenuation, engineering or Tribal or Federal

institutional controls. Any site where a remedy is proposed that includes leaving

contamination above background or risk-based levels in place utilizing engineering or

Tribal or Federal institutional controls must also be approved by the Executive

Committee pursuant to this Title;

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(b) Attain Standards Established by the FSST. A remedy will attain standards established

under this Section for air, soil, water and ground water affected by the release, unless the

Brownfields Program sets an alternate standard. No standard set under this Section for a

contaminant will be set at a level or concentration lower than the background level for

that contaminant. A remedy must attain standards or alternate standards by the end of the

remediation period set forth in an Order or a Remediation Agreement. A remedy will be

considered to attain Tribal standards for air, soil water and ground water if it:

(1) Meets any applicable media standards established under Tribal or Federal act,

law, Title, rule or regulation; or

(2) Meets site-specific, risk-based standards approved by the Executive Committee

upon recommendation of the DNR and Brownfields Program for the eligible site

based on exposure factors. Exposure factors for hazardous substances, pollutants

or contaminants in groundwater will assume that groundwater may be used as a

drinking water source, provided that no standard set under this Section for a

contaminant will be set at a level or concentration lower than the background

level or concentration for that contaminant. For substances that may adversely

impact water quality, the exposure factors to be used by the Brownfields Program

will assume uses consistent with the class of use prior to contamination of the

groundwater. Exposure factors for soils may take into consideration current and

future land use.

or eliminate, to the extent technically practicable, further releases as required to protect

human health and the environment. A remedy will be considered to control sources of

releases if it controls the release of contaminants from sources to any media in

concentrations that:

(1) exceed applicable standards set by the Executive Committee upon

recommendation of the DNR and Brownfields Program under this Section, or the

soil standards under this Section; and

(2) comply with any applicable Federal or Tribal standard for management of wastes

generated as a consequence of the remedy.

(d) Remedy Waste Management. A remedy will be considered to comply with applicable

standards for management of wastes if all wastes generated as a consequence of

implementation of the remedy are treated, stored or disposed of in compliance with the

requirements of this Title and any applicable state or Federal requirements.

(e) Remedy Selection. The Brownfields Program will choose a remedy, or combination of

remedies, from among those remedies that meet the requirements of this Section, as

applicable. In choosing a remedy, the Brownfields Program will consider:

(1) The extent to which the remedy will be reliable and effective for the long term.

For remedies that include engineering or Tribal institutional controls, the

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Brownfields Program will consider the expected life cycle performance of any

engineering controls, monitoring systems and institutional controls;

(2) The extent to which the remedy results in a reduction of toxicity, mobility or

volume of contaminants;

(3) The degree to which remedies incorporate treatment or removal of contaminants

to lower long-term risk to human health and the environment;

(4) The time required for each remedy to attain standards for air, soil, water and

ground water specified in this Section, as applicable. A remedy involving

monitored natural attenuation may be considered whether or not the Brownfields

Program has made a determination of technical impracticability. Monitored

natural attenuation will be deemed effective if there is clear and convincing

evidence that natural attenuation is occurring and will be completed within a

reasonable time period;

(5) Any adverse impacts which may be caused by a remedy, and will take into

consideration:

i. The gravity of any projected impact and the cost and availability of

measures to mitigate the impact;

ii. The extent and nature of contamination and practicable capabilities of

remedial technologies, and whether achieving standards is technically

impracticable;

iii. Reasonably anticipated future land uses or use restrictions in a Tribal

institutional control area;

iv. Consistency of remedies with the nature and complexities of releases of

contaminants;

v. Consistency of the remedies with cultural and traditional values of the

FSST; and

vi. Cost of the remedy to include capital, operation and maintenance,

engineering and institutional control costs and monitoring costs for the

anticipated life of the remedy.

Section 16-4-13. Public Participation.

For any FSST conducted or required Remedial Action the Brownfields Program will implement

a public participation plan. In implementing the plan, the Brownfields Program will consult with

and consider the public participation needs of interested parties, including but not limited to all

known adjacent property owners of record of land, responsible Tribal or Federal government

agencies and local public interest groups. The FSST residents will be notified thru public notice

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in appropriate locations and local publications of remedial actions planned and conducted under

this Section.

The Brownfields Program the Brownfields Program will provide an opportunity for a public

meeting on a planned Remedial Action and the meeting will be held if the Brownfields Program

finds sufficient public interest.

Section 16-4-14. Public Record.

The Brownfields Program will establish and maintain a Public Record of response actions

conducted by the Brownfields Program, or conducted by another party, or Tribal or government

agency, with oversight by the RP, that is updated at least annually. The contents are found in the

Integrated Solid Waste Management Plan. The Public Record will include, at a minimum:

(a) A record of sites at which response actions have been completed during the previous

calendar year, including the name and location of such sites;

(b) A record of sites at which response actions are planned to be conducted in the coming

calendar year;

unrestricted use or if institutional controls on the use of the site or property will be

implemented by the Brownfields Program or the FSST as part of the remedy;

(d) Other such information as deemed appropriate by the Brownfields Program; and

(e) The public will have access to all documents and related materials that the

owner/operator of a site or property and/or the Brownfields Program are relying upon to

make response action decisions or conduct the site activities to include the:

(1) Notification of a Release

(2) Spill Reports

(3) Assessment Report(s)

(4) Remedial Agreement or Action Plan and related documents

(5) Notification of Completion of a Response Action

(6) Certification of Completion of a Response Action; and

(7) Post Response Action/Monitoring Plan (if required).

Section 16-4-15. Verification and Documentation of Completion.

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The Brownfields Program may review any reports or documentation or conduct any necessary

site investigations, to include site sampling and analysis, to verify that the response or remedial

action has met the requirements and standards of this Title and the FSST. The Brownfields

Program may issue either of two (2) letters to a responsible party, person or government agency

to document that a response action is complete: A Certificate of Completion; or A No Further

Action (NFA) letter. Both assurances may give site owners, operators, prospective purchasers, or

other responsible party or government agency certainty about the extent of their remediation

liability. If a Certificate of Completion or No Further Action letter is issued the Brownfields

Program will record a notice of such action in the appropriate office of the FSST, the BIA and/or

the County with the deed or other official document(s) of record for the site or property and will

file such notice no later than ten (10) business days after the date of issuance.

(a) If a term or condition of any No Further Action letter, covenant not to sue, or Certificate

of Completion requires the maintenance of a bond or other evidence of financial

assurance, it will be the duty of any successor in property interest to maintain such bond

or financial assurance.

(b) No person or entity will change any engineering or institutional controls contained in a

Remediation Agreement, NFA letter or Certificate of Completion without the prior

written consent of the Executive Committee upon recommendation of the DNR and

Brownfields Program. Before a change may be made, the Brownfields Program will

review the contamination at the site and any new requirements will be incorporated into a

subsequent Remediation Agreement, NFA letter or Certificate of Completion. Upon

entry into a subsequent Remediation Agreement or Certificate of Completion or issuance

of a NFA letter, the Executive Committee upon recommendation of the DNR and

Brownfields Program will modify or terminate any prior Remediation Agreement, NFA

letter or Certificate of Completion.

Section 16-4-16. Certification of Completion.

Certificates of Completion must be requested from FSST in writing. A Certification of

Completion may be issued by the Brownfields Program for sites that have been remediated

according to the terms and conditions in an approved Voluntary Remediation Agreement, Order

or Permit. The Certification of Completion may state that, at the time the certificate is issued, all

remediation requirements necessary to protect human health and the environment have been

successfully completed and that Brownfields Program currently has no plans to further evaluate

the site or to impose additional remediation requirements. In addition, a Certificate of

Completion does not limit the DNR and Brownfields Program ability to undertake enforcement

actions or to impose penalties for violations of this Title.

(a) a Certificate of Completion does not relieve the responsible party from applicable Tribal,

state or Federal environmental permitting requirements;

(b) a Certificate of Completion may be issued for an entire site or for only a particular area

on a site, or a particular set of contaminants, or a particular environmental medium.

Partial Certificates of Completion will contain disclaimers explaining that the coverage of

the liability assurance is limited to the specific area, contaminants, or media addressed

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and that the DNR and Brownfields Program ability to require additional remediation is

not limited for other areas, contaminants, or media;

cleanup is necessary, information must be provided to the DNR and Brownfields

Program documenting that the site (or portion of a site) for which the certificate is

requested has been characterized in accordance with the site characterization performance

criteria in the Remediation Assessment Agreement and that contaminants of concern

either have not been released or are below required cleanup levels;

(d) The Brownfields Program may reopen a Certificate of Completion based on the

provisions in the certificate and/or:

(1) The site owner fails substantially to comply with the terms and conditions of the

certificate; or

(2) Contamination is discovered that was present on the site but was not known to the

owner/responsible party or the DNR and Brownfields Program on the date the

certificate was issued; or

(3) An imminent and substantial endangerment to human health or the environment is

discovered; or

(4) The Brownfields Program determines that the site remedy has failed to meet

remediation objectives; or

(5) The Brownfields Program determines that the certificate was based on fraud,

material misrepresentation, or failure to disclose material information.

(e) The Brownfields Program may issue a Conditional Certificate of Completion where:

(1) A monitored natural attenuation remedy is approved and DNR and Brownfields

Program determines that no exposure to contaminated media is reasonably

expected to occur during the period of monitored natural attenuation. The

Certificate of Completion will be conditioned on the volunteer’s continued

compliance with the monitoring requirements associated with the Remediation

Agreement, site uses not changing during the period of natural attenuation, and

confirmation sampling to show that cleanup levels are achieved when the period

of natural attenuation is complete;

(2) An alternative (i.e., restricted use) soil cleanup levels are approved in conjunction

with a use control area determination. In these circumstances, the certificate of

completion will be conditioned on continued compliance with the requirements of

the use control area; or

(3) A technical impracticability determination is made for cleanup of soil or water in

accordance with this Title, provided the volunteer achieves alternative cleanup

levels established by the Brownfields Program. The Certificate of Completion

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will be conditioned on the volunteer’s continued compliance with any controls on

land use to prevent human or environmental exposure to contaminated media.

Section 16-4-17. Covenant not to Sue.

Consistent with the re-openers and termination clauses in the Remediation Agreement, the

Brownfields Program may, upon request, provide the property owner or prospective purchaser a

covenant not to sue subject to the review and approval of the Executive Committee and legal

counsel. Any covenant not to sue will extend to subsequent owners.

Section 16-4-18. No Further Action Letter (“NFA”).

If the Brownfields Program determines that no further remediation is required on a property or

site; the DNR and Brownfields Program may, upon request, issue a No Further Action (NFA)

Letter to a responsible party, person or government agency and/or a prospective purchaser or

lessee to document that a response action is complete pursuant to this Title and any Tribal Order

or permit requiring such action, and that no further action may be required. The NFA letter may

provide site owners, operators, prospective purchasers, or other responsible party or government

agency certainty about the extent of their remediation liability. The letter may state that, at the

time the letter is issued, all remediation requirements necessary to protect human health and the

environment have been successfully completed and that Brownfields Program currently has no

plans to further evaluate the site or to impose additional remediation requirements. The DNR and

Brownfields Program may reopen a No Further Action determination at any time if an imminent

and substantial endangerment to human health or the environment is discovered; or the DNR and

Brownfields Program determines that the monitored natural attenuation remedy is not effective

in meeting the standards for a No Further Action letter under this Section. Special conditions

and/or re-openers may be included in the NFA letter when:

(a) The property or site requires engineering or institutional controls or other use restrictions

to meet the standards in this Section; or

(b) Monitored natural attenuation over a reasonable period of time is appropriate and that no

exposure to contaminated media is reasonably expected during the period of natural

attenuation. The No Further Action letter may require that the current use of the property

continue during the period of natural attenuation and also may require that testing be

conducted to confirm that standards are met.

Section 16-4-19. Institutional Controls.

An institutional control area or site to establish long-term restrictions or controls on the use of

the site or property may be created or modified by a resolution of the Executive Committee

and/or a responsible government agency in order to provide temporary or long-term protection of

public health and the environment. The DNR and Brownfields Program, an owner or lessee of a

site or property or a government agency responsible for a site or property or the Executive

Committee may propose long-term restrictions or controls on the use of a site or property.

Page 27 of 44

(a) Any affected party, the Brownfields Program or any appropriate governmental entity or

entities, as appropriate, may petition for the creation of such an institutional control area.

Such petitioner for creation or modification of an institutional control area will:

(1) Provide data, information, reports and any other information required in a

Remediation Assessment Agreement and/or Remediation Agreement under this

Section;

(2) Document written notice of the petition to all property owners of record of land

contiguous to the site; and

(3) Publish notice of the petition and a public meeting in a newspaper of general

circulation in the community in which the site is located. The notice will identify

the property, generally describe the petition and proposed use restrictions, direct

that comments may be submitted to the Executive Committee and any responsible

governmental entity or entities to whom the petition has been submitted, and

provide the date, time and place of a public meeting. The public meeting will be

held no sooner than thirty (30) days after the first publication of the notice.

(4) The Executive Committee will approve or deny such petition for an institutional

control area in accordance with applicable Tribal policies, rules, regulations and

procedures.

(5) The Executive Committee may condition its approval of the petition upon the

determination by the DNR and Brownfields Program that a remedy can be

selected that meets the requirements of this Section and is consistent with the

petition.

(6) Before a voluntary remediation, applicant and the DNR and Brownfields Program

may enter into a Remediation Agreement that includes long-term restrictions on

the use of a site or property, the owner or lessee of the site or property must obtain

an institutional control designation for the site as provided for in this Section.

(7) The restrictions in an institutional control area are enforceable by the Executive

Committee or the DNR and Brownfields Program Director by injunction,

mandamus or abatement, in addition to any other remedies provided by Tribal law

or Title.

(8) Institutional controls or use restrictions will run with the land and be binding upon

successors in land ownership and/or leases.

(9) A violation of any use restriction or institutional control will be deemed a

violation of this Title, and the DNR and Brownfields Program Director or

Executive Committee may bring any action for such violation against the owner

or lessee of the property or site for the violation at the time the violation occurs or

against the person who violates the use restriction or institutional control.

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(10) Nothing in this Section will contravene or limit the authority of any Tribal,

Federal, county, city or government agency to regulate and control the property

under their jurisdiction.

Section 16-4-20. Re-openings or Terminations of Agreements.

(a) Re-openings. The Executive Committee upon recommendation of the DNR and

Brownfields Program may reopen a Remediation Agreement, covenant not to sue, No

Further Action Letter or Certificate of Completion at any time if:

(1) The current owner fails substantially to comply with the terms and conditions of

the Remediation Agreement, covenant not to sue, No Further Action Letter or

Certificate of Completion;

(2) An imminent and substantial endangerment to human health or the environment is

discovered;

(3) Contamination is discovered that was present on the site but was not known to the

owner, responsible party or the DNR and Brownfields Program on the date of the

Remediation Agreement or when the Brownfields Program issued a covenant not

to sue, NFA letter or certificate of completion; or

(4) The remedy fails to meet the remediation objectives that are contained in the

Remediation Agreement, NFA letter or Certificate of Completion; or

(5) The monitored natural attenuation remedy is not effective in meeting the

standards under this section.

(b) Terminations. The Executive Committee upon recommendation of the DNR and

Brownfields Program may terminate a Remediation Agreement, covenant not to sue,

Certificate of Completion or No Further Action letter if:

(1) It is discovered that any of these instruments were based on fraud, material

misrepresentation or failure to disclose material information; or

(2) If a responsible party’s or property owner's willful violation of any use restriction

results in harmful exposures of any toxic contaminant to any user or occupant of

the site.

Completion or No Further Action letter is reopened or terminated, the DNR and

Brownfields Program will record a notice of such action in the appropriate Tribal, BIA

and/or county office with the deed for the site or other appropriate official land document

and will file the notice no later than ten (10) business days after the date of the

Remediation Agreement, covenant not to sue, certificate of completion or no further

action letter is reopened or terminated.

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Section 16-4-21. Disputes and Appeals.

If a person and the Brownfields Program are unable after good faith efforts to resolve a dispute

arising under this Chapter pursuant to the provisions of an agreement, the person may request a

hearing to appeal the Brownfields Program’s decision to the Executive Committee. The

Executive Committee decision may be appealed to the Tribal Court. All hearings conducted

under this Section will be conducted pursuant to the FSST Law and Order Code and applicable

Administrative Procedures.

Section 16-4-22. Remediation Fees Assessment.

(a) The Executive Committee may implement a fee system and schedule of fees, subject to

the approval of the Executive Committee, which are applicable to the applicant for a

Remediation Assessment Agreement, Remediation Agreement, Certificates of

Completion or No Further Action letter authorized under this Section. Fees will cover all

reasonable direct and indirect costs of the Brownfields Program.

(b) The DNR and Brownfields Program will give written notice of the amount of the fee

assessment to the applicant.

Certificates of Completion and No Further Action letters authorized under this Section

may appeal the fee assessment to the Executive Committee within thirty (30) days of

receipt of the notice.

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CHAPTER 5. WASTE STORAGE, COLLECTION, TRANSFER AND

TRANSPORTATION.

Section 16-5-1. Waste Storage.

Solid waste will be deposited and stored in the following manner:

(a) There will be provisions for storage which will accommodate the volume of solid waste

anticipated which may be easily cleaned and maintained, and which will allow for

efficient, safe collection and prevent spillage and littering.

(b) All solid wastes (or materials which have been separated for the purpose of recycling)

will be stored in such a manner that they do not constitute a fire, health, or safety hazard

or provide food or harborage for vectors and will be contained or bundled so as not to

result in spillage.

container or in a manner that will confine the waste in one area, and not create a public

nuisance or attract vectors.

(d) Bulky rubbish such as tree trimming, newspaper, weeds and large cardboard boxes will

be handled as directed by the DNR.

(e) Storage of bulky wastes will include, but is not limited to, removing all doors from large

household appliances or storing or covering the item(s) to reduce the problems of an

attractive nuisance, and the accumulation of solid waste and water in the bulky items.

Section 16-5-2. Waste Containers and Receptacles.

(a) The owner, agent or occupant of every dwelling, business establishment or other

premises where refuse accumulates will provide a sufficient number of suitable and FSST

approved containers for receiving and storing of refuse and will keep all refuse therein or

use such containers provided by the Waste Collection Service. The owner, agent or

occupant of every dwelling, business establishment or other premises where refuse

accumulates, will be responsible for the safe and sanitary storage of all solid waste

accumulated at that premise until it is removed;

(b) Approved and provided containers will be maintained in a manner consistent with this

Title and acceptable to the DNR. Containers that are broken or otherwise fail to meet the

requirements of this Title will be replaced;

painted as deemed necessary by the DNR.

(d) Approved individual containers will be stored off the ground on racks or stands or in

designated locations and easily accessible for collection by the collection service or

authorized franchisees or representatives.

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(e) A property which is available to the public or for the transaction of business to include

commercially operated parks, campgrounds, drive-in restaurants, automobile service

stations, business parking lots, car washes, shopping centers, marinas, boat launching

areas, industrial parking lots, boat moorage and fueling stations, piers, beaches and

bathing areas, airports, roadside rest stops, drive-in movies, and shopping malls will

provide receptacles for wastes. This will also apply to property available to the public for

assemblage or recreation to include any property that is Tribally owned or operated.

(f) In order to assist the public in complying with this Chapter, the owner or person in

control of any property which is available to the public as a place for assemblage, the

transaction of business, recreation, or as a public way will cause to be placed and

maintained receptacles for the deposit of litter, of sufficient volume and in sufficient

numbers to contain the litter which can be expected to be generated by the numbers of

people customarily coming on or using the property. A receptacle will be maintained in a

manner to prevent overflow or spillage of litter from the receptacle.

(g) A temporary site or location may be designated by the FSST, the DNR or any of its

agencies or departments, for the collection of waste and placement of waste containers or

receptacles. Such a site will be used for less than 90 days and be:

(1) Located at a site or location that does not create a public health or safety hazard, a

public nuisance, or a fire hazard;

(2) Approved by proper Tribal officials;

(3) Managed by the responsible Tribal agency or department, or land owner/leasee,

who will remove and properly disposes of all waste when the emergency or

temporary situation no longer exists.

Section 16-5-3. Solid Waste Collection Services and Practices.

(a) Collection Service. All Tribal residents will be required to subscribe to a refuse

collection service or its Collection Service Provider, permitted by FSST, or Tribal

residents may take their own trash to an FSST designated and approved collection,

transfer or disposal site if available. A collection or disposal fee may be charged by the

FSST.

(b) Collection Schedules.

(1) The collection of solid waste will be on a timely basis but no less than once every

seven (7) days barring adverse weather conditions or other conditions or

equipment failure beyond the control of the collection service.

(2) All FSST operated solid waste collection or transfer sites will be open during days

and hours set by the DNR and will remain open on special occasions such as Pow

Wows, for disposal of waste, debris and refuse as allowed by this Title.

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open competitive bidding process, recommended by DNR, and approved by the

Executive Committee.

(d) Non-payment of Collection Fees. Non-payment of waste collection or transfer fees

resulting in a termination of waste collection services will be a violation of this Title and

may result in action being taken by the DNR. Action may include the discontinuation of

other utilities provided by the Tribe or other civil penalties.

(e) Collection Standards. Solid waste will be deposited, stored and collected in a manner

that prevents spillage and littering. Should spillage and/or littering occur, the waste will

be cleaned up by the responsible person(s) within 24 hours and returned to the vehicle,

appropriate facility or container. Property owners, lessees, residents and home owners

are the responsible party for releases, littering or spillage of solid waste from their

residence or property until such wastes are collected by the authorized collection service.

(f) Waste Rejection. The Collection Service Franchisee(s) reserves the right to refuse any

and all materials at the pick-up point, collection sites, transfer stations, or any other solid

waste facility based upon the characteristics of the waste or the generator’s failure to

properly screen the waste for hazardous or special waste as defined under this Title.

(g) Material Separation. The DNR and Brownfields Program or the Collection Service

Franchisee(s) reserves the right to require screening and separation of any waste materials

deemed necessary to identify and separate hazardous or special waste prior to collection

or acceptance at a solid waste management or transfer facility.

(h) Site Access. All Tribal, community or commercial solid waste collection sites must be

provided with an all-weather access road, suitable for travel by loaded vehicles; and must

be fenced with access provided only through one control entry point.

Section 16-5-4. Waste Transportation.

(a) Containment During Transport. All vehicles used for collection and transportation of

refuse, to include private vehicles, will be loaded and moved in such a manner that the

contents, including ashes, will not fall, leak or spill from vehicles. Open top vehicles or

vehicles with attached or towed open top containers will be covered with a tarp or other

covering while in transit on public roads to ensure load security and prevent the release of

any debris or liquids. Any releases, littering or spillage from such vehicles are the

responsibility of the vehicle owner or operator and the generator and must be cleaned up

within 24 hours of such release or spillage.

(b) Commercial Waste Haulers. Commercial vehicles used for the collection and

transportation of solid waste, including refuse or garbage, will have covered, watertight,

metal bodies of easily cleanable construction, and will be cleaned frequently to prevent a

nuisance, and will be maintained in good repair.

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CHAPTER 6. GENERAL SOLID WASTE MANAGEMENT REQUIREMENTS,

PERMITS, AND FEES.

Section 16-6-1. Commercial Waste Management.

No commercial solid or hazardous waste management, storage, treatment, transfer or disposal

facilities will be located within the jurisdiction of the FSST.

Section 16-6-2. Waste Management Permits.

(a) A Permit from DNR is required for the following activities or facilities pursuant to this

Title. Procedures in obtaining a Permit and the applicable Permit Fee is in the Integrated

Plan. If a Permit is denied by DNR, it will be referred to the Executive Committee for

final action:

(1) Commercial Motor Vehicle Salvage Yard

(2) Commercial waste Collection and Transportation

(3) Construction Waste Management

(4) Demolition Waste Management (structures greater than 100 sq. ft.)

(5) Waste/Used Oil Collection and Storage

(6) Open Burning

(7) Septic Waste Pumping and Hauling

(8) Used or Scrap Tire Storage

(9) Prime Contractor Waste Management Permit Fee

Section 16-6-3. Waste Management Permit Fees.

(a) The Executive Committee, upon recommendation of DNR, will set fees by resolution,

which will be published in the Integrated Plan, which is reviewed annually by the Land

Committee and Executive Committee. The fees will be commensurate with costs to issue

and monitor activities undertaken by the Permit.

(b) The Executive Committee may exempt fixed income, disabled or other persons from such

fees for solid waste management and/or determine alternative ways for such persons to

pay for Permit.

refuse in furtherance of clean-up days and other civic purposes.

(d) Each Permittee will keep complete and accurate records in such form as the Executive

Committee may require.

Page 34 of 44

Section 16-6-4. Prime Contractor Waste Management Permit Fee.

The FSST will charge a Permit Fee for “Prime Contractors” for demolition or construction

projects The Permit Fee will be payable to the FSST and will be for the sum of 2% of the total

gross amount of the contract. Such a Permit Fee will be noticed as part of the request for bids

process. For the purposes of this requirement a “Prime Contractor” is the prime contractor for

construction or demolition projects funded by a Federal agency, Tribal Government, or other

commercial construction. This does not apply to private residential or agricultural property

construction or demolition.

Section 16-6-5. Non-payment of Permit Fees.

Non-payment of any required FSST Permit fee may be grounds for denial or revocation of a

Permit and/or a contract. Non-payment of required fees will be a violation of this Title and

permittee may be subject to civil penalties. The Executive Committee will have the primary

jurisdiction to hear matters regarding the non-payment of fees established pursuant to this Title.

Section 16-6-6. Revenues from Permit Fees.

(a) Fees collected under this Chapter will be deposited in a special account established for

the Program for the permitting, inspection, code enforcement and oversight of solid waste

management and facilities as well as response to environmental hazards and emergencies.

(b) The expenditure of all above revenues from fees will be subject to the review and

oversight of the Executive Committee.

Section 16-6-7. Emergency Permits.

The Executive Committee, upon recommendation by DNR, may issue an emergency permit for

one-time waste management or disposal events based on various practical factors during

emergency conditions. Application for such permits will be made pursuant to this Title. The

Executive Committee, DNR, and other Tribal, local, state and Federal agencies will work

together to accomplish the efficient and environmentally sound disposal of solid and/or

hazardous waste and related materials so as to minimize impacts to human health, the

environment and to water resources. Disposal under emergency permits must be restricted to

generally inert or other solid wastes from a specific site or area and for a specific period of time.

Section 16-6-8. Waste Management Siting.

The Executive Committee may declare by resolution, or find in a specific case, that a specified

geographical area of Tribal lands possesses special or unique characteristics subject to specific

requirements, and the Executive Committee may prohibit the installation or establishment of

specific types or sizes of solid waste collection, storage or other facilities in these specified

geographical areas based on these findings.

Section 16-6-9. Perpetual Responsibility for Solid Waste and Liability for Pollution.

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Any nation, Tribe, state, municipality, county, or other political subdivision which has solid

waste generated within its boundaries stored, treated or otherwise managed in lands subject to

the jurisdiction of the FSST will be responsible in perpetuity for the solid waste and liable in

perpetuity for any pollution or other deleterious effect caused by it.

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CHAPTER 7. COMPLIANCE AND ENFORCEMENT.

Section 16-7-1. Authority, Duties and Responsibilities.

The Brownfields Program, under the direction of DNR or the Executive Committee, is hereby

designated as the lead Tribal Agency for all purposes under this Title and will administer and

enforce these Codes. As appropriate, the DNR, Brownfields Program, and Executive Committee

will have and may exercise the following authorities, duties and responsibilities in assuring

compliance with and enforcement of this Title:

(a) Take all administrative action necessary as provided for in this Title related to civil

enforcement of the provisions of this Title;

(b) Investigate alleged violations of any provisions of this Title and take administrative or

civil enforcement actions described in this Chapter;

motion, the Brownfields Program will investigate the activities of any person or permittee

to ensure compliance with this Title.

(d) The Brownfields Program may at reasonable times enter onto any solid waste

management facility, open dump or property where solid waste is present for

investigating any potential violation of this Title and Chapter. The Brownfields Director

may request the Tribal Police lead the investigation. In conducting these investigations,

the Brownfields Director may take samples of the waste, soils, air, or water or may, upon

issuance of an Order, require any person to take and analyze samples of such waste, soil,

air, or water.

(e) In conducting an investigation of a FSST permittee or permitted activity, the Brownfields

Director will refer to Tribal Police, requesting them, 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;

(f) If Brownfields Program finds that any violation of this Title by a person knowingly made

any false statement, representation or certification, or knowingly falsified, tampered with

or rendered inaccurate any required monitoring device, the Brownfields Program may

refer the matter to the DNR, Executive Committee, U.S. EPA, Tribal Police, or Federal

law enforcement officials;

(g) Any authority vested in the DNR and Brownfields Program by this Title may be

delegated to such FSST officers, agents, departments or other staff as the DNR and

Brownfields Program may designate; and such individuals may have all other authorities,

duties and responsibilities as stated herein.

(h) The DNR and Brownfields Program will communicate with the Executive Committee,

the public, and the U.S. EPA as appropriate, regarding compliance and enforcement

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activities in a manner and containing such information as the Executive Committee

approves, excluding any confidential or privileged information.

Section 16-7-2. Enforcement Actions.

The Executive Committee, upon recommendation of the DNR and Brownfields Program, may

initiate and execute the following enforcement actions to ensure compliance with this Title:

(a) Informal Compliance Actions. The Executive Council, upon recommendation of the

DNR and Brownfields Program, may initiate informal actions to inform a party of

violations of this Title, and how to correct such violations, where such violations are

minor and do not pose an imminent risk to public health or the environment or are not

habitual in nature. Such informal actions may include a verbal warning, an informal

compliance conference and/or a written Warning Letter. Failure of a party or person to

take timely action or achieve complete compliance with this Title, may result in a formal

enforcement action pursuant to this Chapter.

(b) Formal Enforcement Actions.

(1) Notice of Non-Compliance or Citation for Minor Violations. A “minor” violation

poses or may pose a relatively low risk of exposure of humans or other

environmental receptors to hazardous substances, pollutants or contaminants;

and/or the actions have or may have a small adverse effect on the regulatory

purposes of this Title. In the event of a minor violation(s), the Executive

Committee, upon recommendation of the DNR and Brownfields Program, will

request the Tribal Police to serve the alleged violator, in person or by certified

mail, with a Notice of Non-Compliance or a Citation. The Notice of Non¬Compliance or Citation will further state:

i. the alleged violator of the Title;

ii. which provisions of this Title are allegedly not being complied with;

iii. the action(s) that must be taken to correct such non-compliance; and

iv. the time frame or deadline for taking such action(s).

In the event of non-compliance with any Notice of Non-Compliance or Citation,

the Executive Committee, upon recommendation of the DNR and Brownfields

Program, may issue a Notice of Violation (NOV) and/or Order the Cessation of

such activity without additional notice to the alleged violator.

(2) Notice of Violation (NOV) for Moderate or Major Violations. A “moderate”

violation poses or may pose a potential risk of exposure of humans or other

environmental receptors to hazardous substances pollutants or contaminants;

and/or the actions have or may have a significant adverse effect on the regulatory

purposes of this Title. This may also include repeated minor violations. A “major”

violation poses or may pose a substantial risk of exposure of humans or other

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environmental receptors to hazardous substances, pollutants or contaminants;

and/or the actions of the violator have or may have a substantial adverse effect on

the regulatory purposes of this Title. This may also include repeated moderate

violations.

i. In the case of an apparent moderate or major violation of this Title the

Executive Committee, upon recommendation of the DNR and Brownfields

Program, will direct the Tribal Attorney to issue a NOV to the person(s)

apparently responsible for the violation. The Executive Committee may

request assistance from the U.S. EPA or other Federal authorities. Both a

NOV and a Cease and Desist Order may be issued for a single incident. A

NOV and/or a Cease and Desist Order should also contain how the

violation can be remedied.

ii. Should no action be taken from the NOV and/or Cease and Desist Order

within ten (10) working days, or the time specified in the NOV or Order,

the Executive Committee will direct the Tribal Attorney to issue a

Summons to appear at an administrative hearing conducted by the

Executive Committee at a specified time and date. The Executive

Committee may request assistance from the U.S. EPA or other Federal

authorities.

(3) Administrative Orders. In the event of any non-compliance with this Title, with

any non-compliance with a Notice of Non-Compliance, Citation or NOV, the

DNR and Brownfields Program may issue an Administrative Order for such noncompliance. The Executive Committee may request assistance from the U.S.

EPA or other Federal authorities.

i. An Administrative Order will state with reasonable specificity the nature

of the violation(s), a time frame for compliance if applicable, outline

specific remediation actions, if appropriate, and the right to a hearing

before the Executive Committee.

ii. An Administrative Order will be hand delivered by the Tribal Police to the

alleged violator or delivered via Certified U.S. Mail. An Administrative

Order issued by Tribal Attorney will become final unless an appeal is filed

with the Executive Committee for a hearing within thirty days of receipt of

the order.

iii. A person subject such an Administrative Order will have all procedural

rights at any administrative hearing held before the Executive Committee

including the right to judicial review by the Tribal Court. The Executive

Committee through the Tribal Attorney may file an action in Tribal Court

to enforce Administrative Orders issued under this Title.

The U.S. EPA may execute an order depending on the severity of a “moderate or

major” violation.

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(4) Cease and Desist Orders. If the Executive Committee has reason to believe that

any person is in violation of any provision of this Title, any condition of any

permit issued under this Title, or that any person is creating an imminent and

substantial endangerment to the public health or the environment, the Tribal

Attorney may file an action in Tribal Court requesting a Cease and Desist Order, a

Temporary Restraining Order, a preliminary injunction or any other relief

necessary to protect the public health or the environment.

(5) Abatement and Remedial Action Orders. Any person who intentionally or

accidentally allows or causes or any pollution or release of hazardous substances,

pollutants or contaminants will, by Order of the Executive Committee, cease and

desist from any improper action or violation(s), clean up any release, abate any

hazard, pollution, or nuisance and otherwise comply with any directive, or

corrective or remedial action order issued by the Tribal Attorney.

Section 16-7-3. Civil Fines and Penalties.

Any person who fails to comply with any provision of this Title may be subject to civil fines or

penalties as well as any other remedies set forth herein or by the DNR and Brownfields Program

in implementing this Title.

(a) Any person failing to obtain a Permit as required in this Title, will be subject to a fine ten

(10) times the amount of the Permit Fee.

(b) The Executive Committee may assess any person violating any provision of this Title a

civil fine and/or impose an alternate penalty or remedy for each violation. A person

against whom the Executive Committee assesses a fine may appeal in Tribal Court.

Thousand Dollars ($5,000.00) per day for each day of such violation or continued

violation of an Order to cease activity. Each day of noncompliance constitutes a separate

violation for purposes of penalty assessments.

(d) Any civil fines will be based upon the policies of the Tribe and the FSST Civil Penalty

Policy, the potential for harm that has been or could be caused by the violation and the

extent of deviation from the requirements of this Title.

(e) The Tribal Police will personally, or via certified United States mail, first class, serve the

alleged violator with notice of the penalty. The penalty will be due and payable to the

DNR and Brownfields Program within twenty calendar (20) days of such notice. Failure

to pay any penalties imposed will be considered an additional violation of this Title.

(f) The Tribal Attorney, as directed by the Executive Committee, is authorized to file an

Administrative Order against a person on behalf of the Tribe in the Tribal Court for civil

penalties, including reasonable attorney's fees and costs. Any Administrative Orders or

other civil action with penalties concerning moderate or major violation(s), as defined in

the FSST Civil Penalty Policy, will be heard in the Tribal Court, and the alleged violator

will be served and have an opportunity to be heard.

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Section 16-7-4. Alternate or Other Civil Penalties or Remedies.

(a) The Executive Committee, Tribal Attorney, or Tribal Court, at its discretion, may

consider additional penalties or alternatives to an assessed civil fine such as:

(1) Community service;

(2) Work for the benefit of the Tribe;

(3) Restitution;

(4) Public publication and notice of the violations and the violator; and/or

(5) Other administrative action.

(b) Such community service or work for the benefit of the Tribe will be not less than eight

(8) hours, but not more than two hundred (200) hours.

additional penalties or alternatives to an assessed civil fine such as:

(1) Exclusion. Any person who is found by the Tribal Court to have committed any

violation(s) under these Regulations may be excluded from the Reservation by the

Court.

(2) Suspension of Commercial Dealings and Consensual Activities. Any person who

commits any of the above prohibited acts, or whose employees or agents, during

their employment, are found to have committed any violation(s) under this Title

may have its rights to engage in commercial dealings or consensual activities with

the FSST suspended or terminated.

(d) In the event an alleged violator fails to act in accordance with an Administrative Order

served pursuant to this Title, the Executive Committee may pursue one or more of the

following remedies:

(1) Request the Secretary of the Interior to serve notices of intent to cancel any

relevant lease pursuant to Federal law for using the leased premises for unlawful

conduct or for an unlawful purpose, specifying the basis for the notice; and/or

(2) Take any other action deemed appropriate so long as the rights of due process

guaranteed by the Indian Civil Rights Act, 25 U.S.C. §§ 1301 et seq., and the

Constitution of the FSST not infringed upon.

(e) Remedies Not Exclusive. The rights of the FSST with respect to a person under this Title,

including the right to issue compliance orders, recover civil penalties, or civil damages

for cleanup, abatement, corrective or remedial costs against a person, are not intended to

be exclusive, and the Tribe reserves all other legal rights which it otherwise has against

Page 41 of 44

any person, including the right to seek injunctive relief or seek relief in any court of

competent jurisdiction.

Section 16-7-5. Removal of Improperly Disposed Solid Waste.

Any person cited for a violation of this Title for improper disposal or dumping will, in addition

to any other penalty, remove the solid waste from where it was improperly disposed and will

dispose of such solid waste in a manner consistent with this Chapter. However, at the direction of

the Executive Committee, the DNR and Brownfields Program may provide for an alternative

means of disposal if such disposal is consistent with the provisions of this Chapter. In addition,

the DNR and Brownfields Program may employ special monitors to supervise such removal and

disposal and may assess the costs of such supervision as costs against the person so cited.

Section 16-7-6. Civil Damages.

The Tribal Attorney, as directed by the Executive Committee, is authorized to bring a civil action

on behalf of the Tribe or its members in the Tribal Court, or any other court of law, against any

person who has committed any violation of these regulations, for all civil damages caused,

including damages to the land or natural resources of the Tribe or its members, and for the

reasonable costs actually incurred or to be incurred by the Tribe for cleaning up any pollutant or

abating the effects thereof, together with the costs of suit, including reasonable attorney's fees.

The Tribe’s Legal Counsel must approve the filing of any civil action for damages before such

action is filed. All civil damages will be paid to the Tribe. This includes any property, which is

forfeited to the Tribe for payment of civil damages.

Section 16-7-7. Payment and Disposition of Civil Fines.

(a) Non-payment of required civil fines will be a violation of this Title. Non-payment of any

required FSST civil fine may be grounds for denial or revocation of a permit or a

contract. The Executive Committee will have the primary jurisdiction to hear matters

regarding the non-payment of civil fines established pursuant to this Title.

(b) Revenues collected pursuant to this Title from fines and/or penalties, not including court

costs, will be deposited in a DNR and Brownfields Program Special Account for the

exclusive use of the DNR and Brownfields Program. Such funds will be designated for

paying costs of ensuring compliance and enforcement of this Title to include public

outreach and education, compliance assistance and remedial responses to environmental

emergencies occurring on lands subject to the jurisdiction of the FSST and will only be

expended for such purposes. This includes any property, which is forfeited to the Tribe

for payment of civil penalties. The Executive Committee will provide oversight of the

use of such funds.

attorney(s) is/are an employee(s) of the Tribe or will otherwise be paid according to the

provisions of any retainer agreement. All costs of suit awarded in any civil action will be

paid to the FSST.

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Section 16-7-8. Liability of Person(s) for Remedial Costs.

(a) If a release of a pollutant, contaminant or hazardous substance is not cleaned up in a

timely manner, the effects thereof not abated, or any other necessary remedial action is

taken by the DNR and Brownfields Program or the FSST, the person who committed

such release or violation(s), will be liable to the Tribe for the reasonable costs actually

incurred in cleaning up any pollutant, abating the effects thereof, or taking other

corrective or remedial action, including all damages to the natural resources of the Tribe

or its members.

(b) The person who committed such release or violation(s) will be liable to the Tribe for the

reasonable costs incurred in the immediate response and oversight of cleaning up any

pollutant, contaminant or hazardous substance by the responsible party, their contractor

or any other third party. The amount of such costs will be recoverable by the Tribe in a

civil action brought by the Tribal Attorney at the direction of the Executive Committee,

filed in the Tribal Court, together with the costs of suit, including reasonable attorney's

fees. Any judgment ordering the payment of these costs to the FSST will bear interest at

the rate of ten percent (10%) per annum.

Section 16-7-9. Criminal Enforcement.

All potential criminal violations of Tribal, state or Federal laws or regulations will be referred to

the appropriate Tribal, or Federal agencies for investigation and appropriate action. The DNR

and Brownfields Program will cooperate with such agencies as needed. The Executive

Committee will be notified of all such referrals.

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LEGISLATIVE HISTORY

This Title was approved by the Flandreau Santee Sioux Executive Committee through Tribal

Resolution 19-47 on July 23, 2019.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.