W.E.E.C. 1200.00 HAZARDOUS SUBSTANCES CODE

W.E.E.C. 1200.00 HAZARDOUS SUBSTANCES CODE

W.E.E.C. 1200.00 General Provisions

Subd.1) Short Title. This section of the Environmental Code is known as the Hazardous

Substances Code and may be referred to as the Hazardous Substances Code and may be

abbreviated as H.S.C.

Subd.2) Statement of Policy.

The beneficial stewardship of the land, air, and waters of the White Earth Reservation is a

solemn obligation of the present generation for the benefit of future generations.

Each Person either residing on or doing business within the exterior boundaries of the

White Earth Reservation (“Reservation Population”) benefits from a healthful

environment and each Person has a responsibility to preserve and protect the quality of

the Reservation Environment.

The White Earth Reservation Tribal Council, in enacting this Code, is taking action to

secure the preservation of life, health, property, and natural resources of the White Earth

Nation, its people, and fee and trust lands to protect against the pollution sources that are

or may contaminate the air, land surface water and ground water of the Reservation

Environment for which existing federal law may not apply.

The main purpose of this Code is to provide remedial law for the cleanup of Hazardous

Substances sites and to prevent the creation of future hazards due to improper disposal of

Hazardous Substances on or into the Reservation Environment.

Subd.3) Findings. The White Earth Reservation Tribal Council finds and declares as follows:

a) The increasing volume of hazardous waste being generated on the

Reservation, and the often inadequate existing methods of managing

hazardous waste have the potential to create conditions that threaten the public

health, safety and well-being of White Earth citizens by contributing to land,

air and water pollution.

b) It is in White Earth’s interest to foster, encourage, and promote the

development, production, and utilization of natural resources on the

Reservation in such a manner as will minimize and properly manage all

hazardous waste resulting from such operations and preventing any adverse

impacts to public health or the Reservation Environment.

c) The enactment of this code by the White Earth Reservation Tribal Council is

in the best interest of ensuring, promoting, and protecting the character of the

Reservation and is consistent with previous policy, resolutions and codes

enacted for the protection of the Reservation Environment.

Subd.4) Authority. The Authority of the White Earth Reservation Tribal Council to enact this

code is found in Article VI, Section 1(c) and (d) of the Revised Constitution and Bylaws of the

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Minnesota Chippewa Tribe, and is an expression of the White Earth Nation’s inherent sovereign

authority.

Subd.5) Definitions. As used in this Code, the following terms shall be ascribed the following

meaning:

a)

b)

¢)

d)

“Brownfields Site” means a site where redevelopment or reuse may be complicated

by the presence or potential presence of a Hazardous Substance or Pollutant or

Contaminant. It does not include a site or facility that is already subject to remediate

or corrective action or is in the process of remediation or corrective action under

applicable tribal, federal or state law; a site or facility that is listed or proposed for

listing on the National Priorities List under CERCLA (42 U.S.C. § 9601, et. seg.); a

site or facility subject to RCRA (42 U.S.C. § 6901, et. seq.) closure requirements; a

site or facility that is the subject of an administrative or court order or consent decree;

or any portion of a site or facility already receiving funding for cleanup.

“Director” or “White Earth Natural Resources Director” means the Tribal

Enforcement Agent responsible for the compliance and enforcement of this Code and

the management and administration of the White Earth Natural Resources Division.

“Environmental Manager” means the agent responsible for management and

administration of the White Earth Environmental Program.

“Hazardous Substance” means:

1) Any “dangerous waste”, defined as any discarded, useless, unwanted, or

abandoned substances disposed of in such quantity or concentration as to pose

a present or potential hazard to human health, wildlife, or the environment

because such wastes or constituents or combinations of such wastes (A) have

short-lived toxic properties that may cause death, injury, or illness or have

mutagenic, teratogenic, or carcinogenic properties; or (B) Are corrosive,

explosive, flammable, or may generate pressure throughout decomposition or

other means.

2) Any “hazardous waste”, defined as any waste which will persist in a

hazardous form for three (3) years or more at a disposal site and either (A)

Presents a significant environmental hazard which may be concentrated by

living organisms through a food chain or may affect the genetic makeup of

people or wildlife; or (B) Is toxic to wildlife or people; or (C) Adversely

affects living organism in soil, sediment, water, or air. Hazardous waste

includes waste disposed of at a disposal site in such quantities as might

present a hazard to people or the environment.

3) Any liquid, solid, gas, or sludge, including any material substance, product,

commodity, or waste, regardless of quantity, that exhibits any of the

characteristics of dangerous waste or extremely hazardous waste.

4) Any substance that is a hazardous substance under CERCLA 101(14), 42

U.S.C. § 9601(14) (2012) (or any similar future federal statute), as may from

time to time be amended.

5) Petroleum or petroleum products.

6) Any substance or category of substances, including solid waste decomposition

products, determined by the Director to present a threat to human health or the

environment if released into the environment.

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€)

f)

g)

h)

dD

k)

7) The term “hazardous substances” does not include, any of the following when

contained in an underground storage tank from which there is not a release:

crude oil or any fraction thereof or petroleum, if the tank is in compliance

with all applicable federal laws and the laws and regulations of the White

Earth Nation.

“Hazardous Substance Release” means any intentional or unintentional entry of any

Hazardous Substance into the environment, including but not limited to the

abandonment or disposal of containers or Hazardous Substances.

“Open Burning” has the same definition given in the Conservation Code.

“Open Dumping”, for purposes of this Code, means disposing of hazardous waste at

any facility or site that does not comply with the requirements of federal or tribal law

for hazardous waste disposal.

“Person” means any individual, public or private corporation, company, partnership,

firm, association or society of people, federal, state, and local governments and any of

their programs and agencies, and any Indian tribe, including the White Earth Nation,

and any of its agencies, divisions, departments, programs, other political subdivisions,

enterprises, and companies.

“Pollutant or Contaminant” shall include, but not be limited to:

1) Any element, substance, compound, or mixture, including disease-causing

agents, which after release into the environment and upon exposure, ingestion,

inhalation, or assimilation into any organism, either directly from the

environment or indirectly by ingestion through food chains, will or may

reasonably be anticipated to cause death, disease, behavioral abnormalities,

cancer, genetic mutation, physiological malfunctions (including malfunctions

in reproduction) or physical deformations, in such organisms or their

offspring. The term Pollutant or Contaminant shall also include a controlled

substance (as defined in Section 102 of the Controlled Substances Act (21

U.S.C. § 802, et. seq.)).

2) Any Pollutant or Contaminant that may present an imminent and substantial

danger to public health or welfare or any Person within the exterior

boundaries of the White Earth Reservation.

“Potentially Responsible Party” means any Person whom the Natural Resources

Department finds, based on credible evidence, to be liable under section 1204.00 of

this Code. The Natural Resources Department shall give notice to any such Person

and allow an opportunity for comment before making the finding, unless an

emergency requires otherwise.

“Responsible Party” means a Person:

1) Who owned or operated a facility when a Hazardous Substance, or Pollutant

or Contaminant, was placed or came to be located in or on the facility; or

when a Hazardous Substance, or Pollutant or Contaminant, was located in or

on the facility but before the release; or during the time of the release or

threatened release of a Hazardous Substance; or

2) Who owned or possessed a Hazardous Substance, or Pollutant or

Contaminant, and arranged, by contract, agreement or otherwise, for the

disposal, treatment or transport for disposal or treatment of the Hazardous

Substance, or Pollutant or Contaminant; or

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3) Who knew or reasonably should have known that the waste the Person

accepted for transport to a disposal or treatment facility contained a

Hazardous Substance, or Pollutant or Contaminant, and either selected the

facility to which it was transported or disposed of it in a manner contrary to

law.

1) “Tribal Prosecutor” means a legal representative of the White Earth Nation

authorized by the Reservation Tribal Council to bring an action in Tribal Court to

enforce any provision of this Code. The Tribal Prosecutor may be the regular Tribal

Prosecutor or a Special Prosecutor, as the case may be.

W.E.E.C. 1201.00 Amendments

The H.S.C. may be amended by the White Earth Reservation Tribal Council by adopting a

resolution stating such changes. Amendments to this Code shall become part of the Code

thereafter for all purposes and shall be codified and incorporated herein in a manner consistent

with the numbering and organization hereof.

W.E.E.C. 1202.00 Severability

If any provision of this Code is held invalid, the remainder of this Code shall not be affected

thereby.

W.E.E.C. 1203.00 Violation of Code

The Director or an authorized representative of the Tribe, may institute proceedings in the White

Earth Tribal Court for any appropriate remedies, including but not limited to, injunctive relief,

seizure and forfeiture, and the posting of bonds or sureties to insure compliance, against any

Person who has violated or failed to comply with any provision of this Code or any regulation,

certificate, of order issued pursuant to this Code.

W.E.E.C. 1204.00 Penalties

Subd.1) General Violations. Any Person who violates any provision or amendments of this Code

may be assessed a civil penalty by the White Earth Court System of not more than $5,000 for

each offense.

Subd.2) Reckless or Intentional Violation. Any Person whose conduct amounts to reckless or

intentional violations of any provision or amendment of this Code may be assessed a civil

penalty by the White Earth Tribal Court of not less than $5,000 nor more than $15,000 for each

offense.

W.E.E.C. 1205.00 Authority of the Natural Resources Director

The foregoing shall not be deemed to limit or restrict the Natural Resources Director or any duly

authorized Person(s) from taking other appropriate action, including but not limited to, seizure of

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materials, and giving notification to an appropriate Federal, Tribal, State, county or municipal

government agency.

W.E.E.C. 1206.00 Court Proceedings

If it appears that any Person violated or failed to comply with any provisions of this Code, the

White Earth Reservation and/or those duly authorized to act on its behalf may undertake in their

name an action to enforce this Code.

W.E.E.C. 1207.00 Jurisdiction

Subd.1) The applicability of this Code shall extend to all Persons who produce, purchase,

transport, handle, store, dispose of Hazardous Substances within the exterior boundaries of the

White Earth Reservation.

Subd.2) Any Person who enters within the exterior boundaries of the Reservation shall become

subject to this Code and all rules and regulations and applicable orders of the Director, and shall

be deemed to have consented to the jurisdiction of the White Earth Tribal Nation, and shall be

subject to the jurisdiction of the White Earth Tribal Court for violation of this Code or any

applicable rules and regulations and orders of the Director.

W.E.E.C. 1208.00 Judicial Proceeding

Decisions of the authorized representative of the White Earth Natural Resources Department

shall be subject to review by the White Earth Tribal Court to the extent permitted or authorized

by Tribal law.

W.E.E.C. 1209.00 Sovereign Immunity

Subd.1) Nothing contained in this Code shall be deemed or construed to be a waiver, limitation,

or modification of the White Earth Reservation’s Sovereign Immunity, and such sovereign

immunity is expressly asserted in any action required for the enforcement of this Code.

W.E.E.C. 1210.00 Unlawful Acts

Subd.1) It shall be unlawful for any Person to:

a) Engage in Open Dumping, or otherwise dispose of any waste in a place other

than a facility which is in compliance with the H.S.C. and other applicable

laws;

b) Dispose of any waste in manner that will endanger public health, safety and

welfare, create a public nuisance, or harm the environment;

c) Dispose of any waste including; bulk or non-containerized liquids not defined

as solid waste at a solid waste facility or transfer station:

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d) Collect, transport, process, or store waste in any manner or at any facility that

is not in compliance with the provision of the H.S.C. or any other applicable

laws;

e) Fail to report releases of any Hazardous Substance pursuant to W.E.E.C.

1211.00;

f) Refuse to provide information or documentation , grant access, or allow

investigations, monitoring, sampling, surveys, testing, or other informational

gathering activities to take place pursuant to W.E.E.C. 1212.00;

g) Engage in Open Burning at a transfer station or solid waste landfill facility;

h) Engage in Open Burning at any location other than a transfer station or solid

waste landfill facility without a burning permit, as required by the White Earth

Reservation Fire and Burning Provisions set forth and approved by Tribal

Council Resolution April 7, 1999. and;

i) Engage in Open Burning of materials pursuant to W.E.E.C. 404.00.

Subd.2) A Person seeking to dispose on site, other than through Open Burning, of solid waste

generated from a farm, ranch, or camp may petition the Director in writing for an exemption

from the prohibition against Open Dumping. The Director shall consider the Person’s proximity

to a transfer station and whether the on-site disposal will create a public health or environmental

hazard. The Director’s decision on the petition shall be final and shall not be subject to judicial

review. A Person seeking to dispose of such solid waste on site through Open Burning must first

apply in writing to the White Earth Forestry Department and must comply with all other

applicable provisions of White Earth Law.

Subd.3) Hazardous waste must be disposed of in accordance with all applicable tribal and federal

laws and regulations.

W.E.E.C. 1211.00 Release Reporting, Monitoring, and Response Actions

Subd.1) The Responsible Party of a facility shall, as soon as he or she has knowledge of any

release (other than a permitted release) of a Hazardous Substance from the facility in quantities

equal to or greater than those determined as reportable quantities under CERCLA § 102, 42

U.S.C. § 9602 (2012) (or any future similar federal statute), notify the Environmental Manager

of the White Earth Natural Resources Department, within 24 hours of learning of such release.

For the purpose of this Code, the reportable quantity of petroleum shall be five gallons or more

for release both on the land and into water. Whether a release meets or exceeds a reportable

quantity shall be determined based on the amount of the Hazardous Substance Release within a

24- hour period. Such Person shall, upon request of the White Earth Natural Resources

Department, provide the White Earth Natural Resources Department with any information he or

she has or may obtain relevant to the release or to a threatened release.

Subd.2) Notification need not be given more than annually for a release subject to subdivision 1

of this section when that release is a continuous release, stable in quantity and rate, and

notification has already been given for that release pursuant to subdivision 1 for a period

sufficient to establish the continuity, quality and regularity of such release. At such time as there

is any statistically significant increase in the quantity of any Hazardous Substance or constituent

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thereof released above that previously reported, however, notice of any such increase shall be

given immediately pursuant to subdivision 1.

Subd.3) Any Person in charge of a facility from which a Hazardous Substance is released, other

than a permitted release, in a quantity equal to or great than the reportable quantity defined in

subdivision 1 of this section, who fails to notify the White Earth Natural Resources Department

pursuant to this section as soon as he or she has actual or constructive knowledge of such release

or who submits in such notification any information which he or she know to be false or

misleading, shall, upon conviction, be fined in accordance with W.E.E.C. 1204.00.

Subd.4) This section shall not apply to the application of Pesticide or Pesticide Products

registered under the Federal Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. § 136-136(y)

or to the handling and storage of such products by an agricultural producer.

W.E.E.C. 1212.00 Access to Property and Information

Subd.1) Access to Property

a) The Director, or any other officer, employee, agent or representative of the White

Earth Reservation duly authorized in writing by the Director, may enter upon any site

at reasonable times if there is reason to believe, based on specific and articulable

facts, there may be a release or threatened release of a Hazardous Substance.

b) The Director or duly designated officer, employee, agent or representative of the

White Earth Reservation may undertake an investigation including but not limited to:

monitoring, sampling, surveys, testing, and other information-gathering activities as

he or she may deem necessary or appropriate to identify the existence and extent of a

release or threatened release, the source and nature of the Hazardous Substances, or

pollutants and contaminants involved, and the extent of danger to the public health or

welfare or to the environment. If samples are taken before leaving the premises the

Director or duly designated officer shall give to the Person in charge of the site from

which the samples were obtained a receipt for samples form and, if requested a

portion of each sample. Also if requested, a copy of the analytical results or such

samples.

c) The Director or any duly designated officer may enter upon a site to undertake

activities including planning, legal, fiscal, engineering, architectural, and other studies

or investigations as he or she deems necessary or appropriate to plan and direct

response actions, to recover the costs thereof, and to implement and enforce the

provisions of this Code.

Subd.2) Access to Information

The Director or any other duly designated officer, employee, or representative of the White Earth

Reservation may require any Person who may have information relevant to any of the following

to furnish, upon reasonable notice, all information or documents relating to such matters or to

allow the Director or any other duly designated officer access at all reasonable times to any site

to inspect and copy all documents relating to such matters:

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a) The identification, nature, and quantity of Hazardous Substances, or pollutants or

contaminants, which have been or are generated, treated, stored, transported, or

disposed of at a site;

b) The nature or extent of a release or threatened release of a Hazardous Substance at or

from a site;

c) Financial information relating to the ability of a Person to pay for and /or to perform a

cleanup; and

d) Information relating to compliance with any requirement of this Code or of any

regulation, authorization, or order issued pursuant to this Code.

Subd.3) Public Availability of Information

Any reports, records, or other information obtained under subdivision 1 or 2 of this section shall

be available to the public, except that upon a showing satisfactory to the Director that records,

reports, or information or any portion thereof would, if made public, divulge methods or

processes entitled to protection as trade secrets or other confidential information protected under

18 U.S.C. § 1905 (2012) (or any similar future federal statute), the Director shall consider such

record, report, information, or portion thereof confidential. Such record, report, information, or

portion thereof may nevertheless be disclosed to other officers, employees, or authorized

representatives of the White Earth Reservation and of the United States concerned with

enforcing this Code or when relevant to any proceeding under this Code. Information required to

be made publicly available under CERCLA § 104(e)(7)(F), 42 U.S.C. § 9604(e)(7)(F), is not

entitled to protection under this subdivision.

Subd.4) Request for Site Assessment

Any Person who is or may be affected by a release or threatened release of a Hazardous

Substance or Pollutant or Contaminant at a Brownfields site located in the community where the

Person works or resides may request the Director in writing for a site assessment to be

conducted. The Director shall consider any such request and, if the Director finds that such a

release or threatened release exists and, in the case of a release of a Pollutant or Contaminant,

presents an imminent and substantial endangerment to the public health or welfare or the

environment, the Director shall require such site assessment to be performed pursuant to §§ 1213

or 1219, subdivision 1 of this Code or shall perform the site assessment pursuant to subdivision 2

of this section.

W.E.E.C. 1213.00 Response Action Required of a Responsible Party

Subd.1) Whenever there is a release or threatened release of a Hazardous Substance, or a

Pollutant or Contaminant, that presents an imminent and substantial endangerment to the public

health or welfare or the environment, the Director may order the Responsible Party to

investigate, remove or arrange for the removal of, provide for remedial action relating to such

Hazardous Substance or Pollutant or Contaminant, or take any other response measure that the

Director deems necessary to protect the public health or welfare or the environment. The order

shall be in writing and shall state action requested, the reasons for the actions, and a reasonable

time for commencing and completing the action, taking into account the urgency of the action for

protection of the public health or welfare or the environment.

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Subd.2) When a Responsible Party fails to complete a response action or to make reasonable

progress in completing a response action order as provided in subdivision 1 of this section, the

Tribal Prosecutor may bring an action pursuant to W.E.E.C 1203.00 to compel performance for

the requested response action. If any Person having any right, title, or interest in the site where

the facility is located or where response actions are proposed to be taken is not a Responsible

Party with regard to the release or threatened release, the Person may be joined as an

indispensable party in an action to compel performance in order to assure that the requested

response action can be taken on the property by the Responsible Party or parties.

Subd.3) Any Responsible Party who fails to take reasonable and necessary response actions or to

make reasonable progress in completing response action ordered as provided in subdivision 1

shall be subject to the assessment of a civil penalty pursuant to W.E.E.C.1204.00.

Subd.4) Response actions required under this section shall attain a degree of cleanup and of

control of further releases that assures protection of human health and the environment and shall

be conducted in accordance with applicable federal and tribal law. In determining the appropriate

cleanup standards to be achieved, the Director shall consider the planned future use of the site.

Subd.5) Before requiring a response action under this the section, the Director shall give notice

in a newspaper of general circulation in the affected area, identifying the facility, site of concern,

parties involved, and providing a brief analysis of the plans that were considered and the basis

for the proposed action. The notice also shall be mailed to all potentially responsible parties

known at the time of notice. The notice shall provide a reasonable opportunity for the public to

submit written comments on the proposed action and an opportunity for a public hearing in the

affected area. The Director shall provide a written response to all significant comments

submitted on the proposed action.

Subd.6) An Administrative Record shall be established and maintained based on response

actions. The Director shall include all items developed and received under Subdivision 5 of this

section within the administrative record.

W.E.E.C. 1214.00 Response Actions by Director

Subd.1) Whenever there is a release of substantial threat of release from a facility of any

Hazardous Substance, pollutant, or contaminant that presents an imminent and substantial

endangerment to public health or welfare or the environment, the Director is authorized to

investigate, remove or arrange for the removal of, and provide for remedial action relating to

such Hazardous Substance, pollutant, or contaminant in order to protect the public health or

welfare or the environment. The Director may take such action when one or more of the

following situations exist:

a) A situation requires immediate action by the Director to protect human health and the

environment; and

b) No Person is found, within 90 day or such shorter period as may be necessary to

protect human health and the environment, who is a Responsible Party with respect to

the release or threatened release and who is capable of carrying out such corrective

action properly, either financially or otherwise.

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c) Ifa Responsible Party is found, that party has failed to or refused to comply with an

order of The Director under W.E.E.C. 1213.00, and is subject to a civil penalty under

W.E.E.C. 1204.00.

The Director may use authorities provided in W.E.E.C. 1212.00 to identify the existence and

extent of the release or threatened release, the source and nature of the Hazardous Substance or

pollutants or contaminants involved, and the extent of danger to public health or welfare or the

environment, and may undertake the various planning and other activities identified in W.E.E.C.

1212.00 to plan and direct a response action, recover the cost of a response action, and enforce

the provisions of this Code.

Subd.2) The Director shall not provide for a response action under this section in response to a

release or threat of release:

a) ofa naturally occurring substance in its unaltered form, or altered solely through

naturally occurring processes or phenomena, from a location where it is naturally

found; or

b) into public or private drinking water supplies due to deterioration of the system

through ordinary use.

Notwithstanding the limitations identified in this subdivision 2, and to the extent authorized by

this section, the Director may respond to any release or threat of release if, in the Director’s

discretion, it constitutes a public health or environmental emergency and no other Person with

the authority and capability to respond to the emergency will do so in a timely manner. In such

instance the Director shall provide the public notice required under subdivision 5 of this section

but may proceed without waiting to receive all public comments and before holding a public

hearing and responding to significant public comments.

Subd.3) No removal or related action taken by any Person shall be construed as an admission of

liability for a release or threatened release

Subd.4) Response actions selected under this section or otherwise required or agreed to by the

Director under other provisions of this Code shall attain a degree of cleanup, and of control of

further releases, that assures protection of human health and the environment and shall be

conducted in accordance with applicable federal and tribal law. In determining the appropriate

cleanup standards to be achieved, the Director shall consider the planned use of the site.

Subd.5) Before selecting a response action under this section, the Director shall give notice of

the proposed action to the public by publication of a notice in a newspaper of general circulation

in the affected area, identifying the facility or site concerned and the parties known to the

Director at the time of the notice, including all Persons whom the Director contacted pursuant to

subdivision 1 of this section. The notice shall provide a reasonable opportunity for the public to

submit written comments on the proposed action and an opportunity for a public hearing in the

affected area. The Director shall provide a written response to all significant comments

submitted on the proposed action.

Subd.6) The Director shall establish an administrative record upon which the Director shall base

the selection of the response action. The administrative record shall include all items developed

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and received under subdivision 5 of this section, and any other items on which the Director relied

in selecting a response action.

Subd.7) Except as otherwise provided in this section, and notwithstanding any other provision or

rule of law, any Person who is a Responsible Party with respect to the release or threatened

release of a Hazardous Substance is strictly liable, jointly and severally, for the following

response cost and damages which result from the release or threatened release or to or from

which the release or threatened release significantly contributes:

a) all reasonable and necessary response cost, administrative expenses, and legal

expenses incurred by the White Earth Tribal Nation pursuant to this section; and

b) all damages for any injury to, destruction of, or loss of natural and cultural resources,

including the reasonable cost of assessing such injury, loss, or destruction.

Subd.8) The cost itemized in paragraph (a), plus interest calculated as provided in 42 U.S.C. §

9607(a), may be recovered in a civil action brought by the Tribal Prosecutor, in the White Earth

Tribal Court against any Person who may be liable under this section. The White Earth Natural

Resources Department certification of cost shall be prima facie evidence that the costs are

reasonable and necessary. A Person who conducts a response action under W.E.E.C. 1213.00

also may be liable for response cost under this section, subject to the defenses listed in

subdivision 9 of this section.

Subd.9) Defenses

a) There is no liability under this section for response cost or damages that result from

the release of a Pollutant or Contaminant that is not a Hazardous Substance.

b) The White Earth Tribal Nation shall not be liable under this section based solely on

its ownership of a site where the facility at issue is located or its status as a lessee or

grantor of any land use interest, including but not limited to rights-of-way, easements,

and land use permits.

c) A Person who accepts only household waste for transport to a treatment or disposal

facility is not liable under this section for the release or threatened release of any

Hazardous Substance unless that Person knew or reasonably should have known that

the Hazardous Substance was present in the waste.

d) It is a defense to liability under this section that the release or threatened release was

caused solely by:

1) An act of war;

2) An act of nature;

3) An act or vandalism or sabotage; or

4) An act or omission of a third party of the Potentially Responsible Party, where

“third party” does not include an employee or agent of the Potentially

Responsible Party, or a Person in the chain of responsibility for the

generation, storage, transportation, treatment, or disposal of the Hazardous

Substance.

The defenses provide in subparagraphs c and d apply only if the Potentially Responsible

Party establishes that the he or she exercised due care with respect to the Hazardous

Substance concerned, taking into consideration the characteristics of the Hazardous

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Substance in light of all relevant facts and circumstances which he or she knew or should

have known, and that he or she took precautions against foreseeable acts or omissions

and the consequences that could foreseeable result from those acts or omissions.

e)

g)

h)

a)

It is a defense to liability under this section that:

1) The Hazardous Substance Release was specifically identified in a federal or tribal

permit and the release is within the limits allowed in the permit or otherwise

conformed with the permit; or

2) The release was part of an emission or discharge into the air or water and the

emission or discharge was subject to a federal or tribal permit and was in

compliance with control rules or regulation adopted pursuant to federal or tribal

law; or

3) The release was the introduction of any Hazardous Substance into a publically

owned treatment works and the substance was specified in, and is in compliance

with, applicable pretreatment standards specified for that substance under federal

or tribal law; or

4) Liability has been assumed by the federal post closure liability fund under

CERCLA, 42 U.S.C. § 9607(k).

It is a defense to liability under this section that, for any injury to, destruction of, or

loss of natural or cultural resources:

1) The natural or cultural resources were specifically identified as an irreversible and

irretrievable commitment or resources in an approved final environmental impact

statement or other comparable approved final environmental analysis for a project

or facility that was the subject of a governmental permit or license; and

2) The project or facility was being operated within the terms of its permit or license.

It is a defense to liability under this section that the response costs or damages

resulted from act taken or omitted in preparation for, or in the course of rendering

care, assistance, or advice to the Director or WENRD pursuant to this section or in

accordance with the national Hazardous Substance response plan under CERCLA, 42

U.S.C § 9605, or at the direction of an on-scene coordinator appointed under that

plan, with respect to any release or threatened release of a Hazardous Substance.

Any Person claiming a defense provided in this subdivision has the burden of proving

all elements of the defense by clear and convincing evidence.

W.E.E.C. 1215.00 Contribution

Subd.1) Any Person may seek contribution in the White Earth Tribal Court from any other

Person, except the White Earth Tribal Nation, who is liable or potentially liable as a Responsible

Party under this Code, during or following any action brought under this Code. In resolving

contribution claims, the Court may allocate response cost among liable parties using such

equitable factors as the Court determines are appropriate. Nothing in this subdivision shall

diminish the right of any Person to bring an action for contribution in the absence of an action

being brought under this Code.

Subd.2) Settlement

A Person who has resolved its liability in an administrative or judicially approved

settlement shall not be liable for claims for contribution regarding matters addressed

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in the settlement. Such settlement does not discharge any of the other potentially

liable Persons unless its terms so to provide, but it reduces the potential liability of the

other Persons by the amount of the settlement.

b) Ifthe White Earth Nation has obtained less than complete relief from a Person who

has resolved its liability to the White Earth Nation in an administrative or judicially

approved settlement, the White Earth Nation may bring an action against any Person

who has not so resolved its liability.

c) A Person who has resolved its liability to the White Earth Nation for some or all of its

response action or for some or all of the costs of such action in an administrative or

judicially approved settlement may seek contribution from any Person who is not

party to a settlement referred to in paragraph a of this subdivision. In any action under

this paragraph c, the rights of any Person who has resolved its liability to the White

Earth Nation shall be subordinate to the rights of the White Earth Nation.

Subd.3) Timing of Action for Contribution

No action for contribution for any response cost or damages may be commenced more than three

years after:

a) The date of judgment in any action under this Code for recovery of such cost or

damages; or

b) The effective date of an administrative settlement or date of entry of a judicially

approved settlement with respect to such cost or damages.

W.E.E.C, 1216.00 Voluntary Response Program

Subd.1) Survey and Inventory

The Director shall conduct a survey of Brownfields Sites and potential Brownfields Sites within

the exterior boundaries of the White Earth Tribal Nation and shall produce and inventory of such

sites that provide an estimated number, likely locations, and general characteristics of the

Brownfields sites. The inventory will be updated annually. The inventory shall includes sites that

have already undergone screening, evaluation, or response as well as sites that have been

identified as having possible releases but have not yet been screened or evaluated. The inventory

is intended to serve as an informational tool and is not intended to identify priorities for action.

Subd.2) Site Prioritization

The Director may prioritize sites for cleanup based on the federal Hazard Ranking System or

may adopt by rulemaking a process or criteria for determining priorities for cleanup base upon,

but not limited to:

a) The relative risk or danger to public health, welfare, or the environment;

b) The damage to natural or cultural resources;

c) The population at risk;

d) The potential for direct human contact;

e) The hazard potential of the Hazardous Substances or the pollutants or contaminants at

such sites;

f) The potential for contamination of drinking water supplies;

g) The potential for destruction of sensitive ecosystems;

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h)

i)

The effect on the human food chain; and

The contamination or potential contamination of the ambient air

Subd.3) Public Record of Sites

The Director shall maintain and make available to the public a record of sites that includes the

names and locations of sites at which response actions, including voluntary response actions,

have been completed in the previous year and at which response actions, including involuntary

response actions, are planned to be addressed in the upcoming year. The record also shall

identify whether a site, upon completion of the response action, will be suitable for unrestricted

use. If not, the record shall identify the institutional controls relied on in the remedy. The record

shall be reviewed annually and updated as necessary.

W.E.E.C. 1217.00 Voluntary Cleanup

Subd.1) In General; Protection from Liability

a)

b)

d)

In General. This section establishes a Voluntary Response Program (also known as a

“Brownfields Program”) to facilitate the cleanup of contaminated sites within the

exterior boundaries of the White Earth Tribal Nation and to encourage the

redevelopment and re-use of such sites.

Non-Response Party. A Person who is not otherwise a Responsible Party under this

Code will not become liable for a release or threatened release if the Person

undertakes and completes response action to remove or remedy all know releases and

threatened releases at a site in accordance with a voluntary response action plan

submitted to and approved by the Director under this section. Such Person also will

not become liable for any release or threatened releases at the identified site that are

not required to be removed or remedied, as long as the requirements of subdivision 2

of this section are met.

Responsible Party. A Responsible Party may receive liability protection under this

section provided that the Responsible Party submits and receives approval for

voluntary response action plan that requires remedy or removal of all releases and

threatened releases at the site and the Responsible Party receives a certificate of

completion under subdivision 7 of this section. When the Director issues the

certificate of completion, the Director and the Responsible Party may enter into an

agreement the resolves the Responsible Party’s future liability under this Code for the

release or threatened release addressed by the response actions.

Other People Protected. The liability protection provided by this section also applies

to the following Persons when the Director issues a certificate of completion under

subdivision 7 of this section:

1) When the response action is performed by a non-Responsible Party:

A) The owner of the site, if the owner is not responsible for any release or

threatened release identified in the approved voluntary response action plan;

B) A Person providing financing to the Person who undertakes and completes the

response actions, or who acquires or develops the site; and

C) A successor or assign of any Person to whom the liability protection applies.

2) When the response action is performed by a Responsible Party:

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A) A Person who acquires the site after approval of the voluntary response action

plan;

B) A Person providing financing for response actions or development at the site

after approval of the voluntary response action plan, whether the financing is

provided to the Person undertaking the response actions or another Person

who acquires or develops the property: and

C) A successor or assign of any Person to whom the liability protection applies.

e) Duty to Exercise Due Care. Nothing in this section relieves a Person of a liability for

failure to exercise due care in performing a response action.

f) Exclusions. The liability protection provided by this section does not apply to:

1)

2)

3)

A Person who aggravates or contributes to a release or threatened release that was

not remedied under an approved voluntary response action plan; or

A Person who was responsible for a release or threatened release identified in the

approved voluntary response action plan before taking an action that would have

made the Person subject to the protection under paragraph c or d of this

subdivision; or

A Person who obtains approval of a voluntary response action plan under this

section by fraud or misrepresentation, or by knowingly failing to disclose material

information, or who knows that approval was so obtained before taking an action

that would have made the Person subject to protection under paragraph c or d of

this subdivision.

Subd.2) Partial Response Action

a) The Director may approve a voluntary response action plan submitted by a Person

who is not a Responsible Party that does not require removal or remedy of all release

and threatened releases at a site if the Director determines that all of the following

criteria have been met:

b)

1)

2)

3)

If reuse or development of the site is proposed, the voluntary response action plan

provides for all response actions required to carry out the proposed reuse or

development in a manner that meets the same standards for protection that apply

to response actions taken or ordered under W.E.E.C. 1213.00;

The response actions and the activities associated with any reuse or development

proposed for the site will not aggravate or contribute to releases or threatened

releases that are not required to be removed or remedied under the voluntary

response action plan and will not interfere with or substantially increase the cost

of response actions to address the remaining releases or threatened releases; and

The owner of the site agrees to cooperate with the Director or other Persons acting

at the direction of the Director in taking response actions necessary to address

remaining releases or threatened releases, and to avoid any action that interferes

with the response actions.

Under paragraph a, subparagraph 3 of this subdivision, an owner may be required to

agree to any or all of the following terms necessary to carry out response actions to

address remaining releases or threatened releases:

1)

To provide access to the property to the Director and the Director’s authorized

representatives;

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2) To allow the Director, or Persons acting at the direction of the Director, to

undertake reasonable and necessary activities at the property, including placement

of borings, wells, equipment, and structures on the property, provided that the

activities do not unreasonably interfere with the proposed reuse or redevelopment;

and

3) To grant easements or other interest in the property to the White Earth Natural

Resources Department for any of the purposes provided in subparagraph 1 or 2 of

this paragraph.

An agreement under paragraph a, subparagraph 3 of this subdivision must apply to

and be binding upon the successors and assigns of the owner. The owner shall record

the agreement, or a memorandum approved by the Director that summarizes the

agreement, with the White Earth Land Office.

Subd.3) Eligibility

a)

b)

Site. Any Brownfields Site is eligible for a response action under this section.

Person. Any Person is eligible to undertake a response action under this section,

according to the provisions herein.

Subd.4) Submission and Approval of Voluntary Response Action Plan

a)

b)

qd)

Application. A Person desiring to participate in the Voluntary Response Program

must submit to the Director an application containing information regarding the site

in question, its proposed future development, an environmental assessment of the site,

a description of the proposed voluntary response action plan, and an application fee,

as specified in regulation promulgated under this section.

Assistance from Director. If the Director approves the application, a voluntary

response action plan must be prepared by the applicant and approved by the Director

before any work under the plan may begin. The Director may, upon request, assist in

or supervise the development and implementation of the voluntary response action

plan. Assistance may include review of agency records and files and review and

approval of a requester’s investigation plans and reports.

Fees for Assistance. A Person requesting assistance under paragraph b of this

subdivision shall pay the White Earth Natural Resources Department for the cost, as

determined by the Director, of providing assistance. A Tribal Department or other

political subdivision of the White Earth Tribal Nation is not required to pay for the

White Earth Environmental Department for assistance under this subdivision.

Requirements for an Approval of Voluntary Response Action Plans. A voluntary

response action plan submitted to the Director for approval must include an

investigation report that describes the methods and results of an investigation of the

releases and threatened releases at the identified site. The Director shall not approve

the voluntary response action plan unless the Director determines that the nature and

extent of the release and threatened release at the site have been adequately identified

and evaluated in the investigation report. Response actions required in a voluntary

response action plan under this section must meet the same standards for protection

that apply to response actions taken or ordered under W.E.E.C. 1213.00, and must

comply with all applicable tribal and federal requirements. Before final approval of a

voluntary response action plan, the Director must comply with the public

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participation requirements in subdivision 9 of this section. The Director may include

in the approval an acknowledgement that, upon certification of completion of the

response actions as provided in subdivision 7 of this section, the Person submitting

the plan will receive the protection from liability provided under this section.

Subd.7) Certification of Completion

a) After remediating the site in question, the Person undertaking the voluntary cleanup

must prepare a completion report for review by the Director and, if the Director

determines that the approved corrective action plan has been completed, the Director

will issue a certificate of completion certifying that the requirements of the plan have

been met, and the Person is released from any further liability under tribal law for

cleanup of the site and for any contamination identified in the environmental

assessment submitted with the application, subject to the provision of subdivision 1

and 2 of this section.

b) Certification of completion of response actions taken under a voluntary response

action plan that does not require removal or remedy of all releases and threatened

releases is subject to compliance by the owner, and the owner’s successors and

assigns, with the terms of the agreement required under subdivision 2, paragraph a,

subparagraph 3 of this section.

Subd.8) Failure to Complete Response Action

Ifa Person receiving approval of a voluntary response plan fails or refuses to complete the

actions covered by the plan, including operation and maintenance, the Director may require such

Person to complete the response action pursuant to § 1213.00 and subchapter 5, may complete

the response action and recover cost pursuant to § 1214.00 may refer the matter to the USEPA to

pursue under CERCLA, RCRA, or other applicable federal laws, and may take any other action

available under tribal or federal law to ensure that the response action will be completed.

Subd.9) Public Participation

Before approving a voluntary response action plan under this section, the Director shall give

notice of the proposed plan to the public by publication of a notice in a newspaper of general

circulation in the affected area, identifying the site concerned and the parties involved and

providing a brief analysis of the plan and the basis for the approval. The notice also shall be

mailed to all potentially responsible parties know to the Director at the time of the notice. The

notice shall provide a reasonable opportunity for the public to submit written comments on the

proposed action and an opportunity from the public to submit written comments on the proposed

action and an opportunity for a public hearing in the affected area. The Director shall provide a

written response to all significant comments submitted on the proposed plan.

Subd.10) Other Rights and Authorities Not Affected

Nothing in this section affects the authority of the Director to exercise any powers or duties

under this Code or any other law with respect to any release or threatened release of a Hazardous

Substance or Pollutant or Contaminant or the right of the Director or any other Person to seek

any relief available under this Code against any party who is not subject to the liability protection

provided under this section.

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W.E.E.C. 1218.00 General Enforcement Authority

Subd.1) Whenever, on the basis of any information available to the Director, the Director finds

that any Person has violated, or is in violation of, any requirement or prohibition of this Code,

the regulations promulgated under this Code, or orders, plans, or fees issued or approved

pursuant to this Code, the Director may:

a) Issue and serve on such Person an order requiring the Person to comply

with each requirement or come into compliance regarding each

prohibition, pursuant to the provisions of this section; and

b) Issue and serve on such Person an administrative penalty order in

accordance with W.E.E.C. 1220.00; and

c) Bring a civil action in accordance with W.E.E.C. 1220.00, subdivision 1

W.E.E.C. 1219.00 Administative Orders

Subd.1) The Director may issue an order to a Responsible Party or Potentially Responsible Party

to investigate, remove or arrange for the removal of, and provide for remedial action relating toa

Hazardous Substance or Pollutant or Contaminant or take any other response measures that the

Director deems necessary to protect the public health or welfare or the environment. The

Director also may order any Person who is subject to any requirement under this Code to:

a) Establish and maintain records

b) Prepare and submit reports

c) Install, use and maintain monitoring equipment, and use audit procedures or methods;

d) Monitor and sample emissions (in accordance with such procedures or methods, at

such locations, at such intervals, during such periods, an in such manner as the

Director shall prescribe);

e) Submit compliance certifications; and

f) Provide such other information as the Director may reasonably require.

Subd.2) An order to comply issued under this section shall state with reasonable specificity the

nature of the violation, shall state that the alleged violator is entitled to a hearing pursuant to §

1221.00, if such hearing is requested in writing within 30 days after the date of issuance of the

order, and shall specify a time for compliance that the Director determines is as expeditious as

practicable, taking into account the seriousness of the violation and any good faith efforts to

comply with applicable requirements. The order shall become effective immediately upon the

expiration of the 30 days if no hearing is requested and, if a timely request for a hearing is made,

upon the decision of the Director following the hearing. The order may be conditional and

require a Person to refrain from particular acts unless certain conditions are met. If the order is

issued to a corporation, it shall be issued to the appropriate corporate officers. No order to

comply issued under this section shall prevent the Director from assessing any penalties or

otherwise affect or limit the Director’s authority to enforce any other provisions of this Code, or

affect any Person’s obligations to comply with any section of this Code or with a term or

condition of any plan approved under this Code. Any Person subject to the order may seek

judicial review of a final agency determination on the order as provided in § 1225.00.

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Subd.3) Emergency Compliance Orders

Notwithstanding any other provisions of this section, the Director (after consultation with the

Tribal Attorney, where feasible) may issue a compliance order that is effective immediately

where there is an imminent and substantial threat of the public health, welfare, or environment.

Any Person issued an order that is effective immediately may file a written request with the

Director for a stay pending the outcome of a hearing on the order taken pursuant to § 1221.00.

The Director shall, by written notice, grant or deny the request for a stay within five days of

receipt of the request. If the Director denies the request for a stay, the affected party has 30 days

to appeal the denial to the White Earth Legal Department but the order shall be effective unless

and until the White Earth Tribal Court rules otherwise. Any Person subject to an emergency

compliance order may seek judicial review of a final agency determination on the order as

provided in § 1225.00.

Subd.4) Enforcement of Compliance Orders

Orders of the Director shall be enforced by the Environmental Department, the White Earth

Conservation Department, and the White Earth Natural Resources Department. Those authorized

to enforce the orders may take reasonable steps to assure compliance, including but not limited

to:

a) Entering upon any property or establishment believed to be violating the order and

assisting in compliance;

b) Issuing a cease and desist order on all or part of the operations within the facility.

Subd.5) Injunctive Relief

Notwithstanding any other provisions of this section, the Director may seek injunctive relief

pursuant to W.E.E.C. 1222, subdivision 1 to restrain any activity which may endanger or cause

damage to public health or welfare or the environment or, in the event of a release or threatened

release creating an imminent and substantial threat to the public health or welfare or

environment, to require a Person to respond to such release or threatened release.

W.E.E.C. 1220.00 Assessment of Penalties

Subd.1) Basis for Penalty

The Director may issue against any Person an administrative order assessing a civil

administrative penalty of up to $5,000 per day per violation whenever the Director finds that a

Person has violated, or is in violation of, any provision, requirement or prohibition of this Code,

including, but not limited to, a regulation adopted pursuant to this Code, an order issued pursuant

to this Code, or a plan approved pursuant to this Code. The Director’s authority under this

subdivision shall be limited to matters where the total penalty sought does not exceed $50,000

and the first alleged date of violation occurred no more than one year prior to the initiation of

administrative action, except where the Director and the Tribal Prosecutor jointly determine that

a matter involving a larger penalty or longer period of violation is appropriate for administrative

penalty action. The communications required to make such a joint determination and the

method(s) used for making such a joint determination shall be privileged, and shall not be subject

to judicial review. The Director may compromise, modify, or remit, with or without any

conditions, any administrative penalty imposed under this section.

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Subd.2) Hearing Requirement

The Director shall assess an administrative penalty under this section by an order made after

opportunity for a hearing under § 1221.00. Before issuing such an order, the Director shall give

written notice of the proposed order to the Person on whom the penalty is to be assessed and

provide such Person an opportunity to request a hearing within 30 days of receipt of the notice.

Subd.3) Field Citations

The Director may implement a field citation program through regulations establishing minor

violations for which field citations assessing civil penalties not to exceed $5,000 per day per

violation may be issued by officers or employees designated by the Director, to the extent

permissible under applicable law. Any Person on whom a field citation is assessed may, pursuant

to regulations issued under this section, elect to pay the penalty or request a hearing on the

citation. If a timely request for a hearing is not made, the penalty shall be final. If a hearing is

requested, the citation shall be treated as an administrative penalty order. Payment of a penalty

required by a field citation shall not be a defense to further enforcement by the Director to

correct a violation or to assess the statutory maximum penalty pursuant to other authorities in

this Code if the violation continues.

Subd.4) Judicial Review

Any Person subject to a civil penalty under subdivisions 1 or 3 of this section who obtained a

hearing on the penalty under § 1221.00 may seek review of the final agency determination on the

penalty in the White Earth Tribal Court by filing a petition for review in such Court within 30

days following the date that the penalty becomes final and by simultaneously sending a copy of

such filing by certified mail to the Director and the Tribal Prosecutor. Within 30 days thereafter

the Director shall file in such Court a certified copy or certified index of the record on which the

penalty was based. The Court shall not set aside or remand an order or assessment under this

section unless the record, taken as a whole, does not substantially support the finding of a

violation or unless the order or penalty assessment constitutes an abuse of discretion. In any such

proceedings, the Director may seek to recover civil penalties ordered or assessed under this

section.

Subd.5) Failure to Pay Penalty

If any Person fails to pay an assessment of a civil penalty or fails to comply with an

administrative penalty order after the order or assessment has become final, the Director shall

request the Tribal Prosecutor to bring a civil action in the White Earth Tribal Court to enforce the

order or recover the amount ordered or assessed plus interest, from the date of the final order or

decision or the date of the final judgment. In such an action the validity, amount and

appropriateness of the order or assessment shall not be subject to review. Any Person who fails

to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to

pay, in addition to such penalty and interest, the Director’s enforcement expenses, including but

not limited to reasonable attorneys’ fees and costs of collection proceedings. Such Person shall

also pay a quarterly nonpayment penalty for each quarter during which such failure to pay

persists. The nonpayment penalty shall be 10% of the aggregate amount of the Person’s

outstanding penalties and nonpayment penalties accrued as of the beginning of the quarter.

Subd.6) Calculation of Penalty

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In determining the amount of any penalty to be assessed under this section, the Director or the

Court, as appropriate, shall take into consideration the factors enumerated in § 1222.00,

subdivision 5.

W.E.E.C. 1221.00 Administrative Hearings

Subd.1) Creation of Environmental Hearing Board

An Environmental Hearing Board is hereby created and shall be composed of three directors or

Managers, two from the White Earth Natural Resources Department and one from a different

White Earth health-related department or program. At least one of the Hearing Board Members

must be a White Earth enrolled member. A director or manager may not serve on the Board

regarding any matter in which he or she has a financial interest or when he or she has a

relationship with a party or with the subject matter that would make it inappropriate for him or

her to act.

Subd.2) Procedural hearings required under this Code shall be informal hearings not subject to

requirements under this section.

W.E.E.C. 1222.00 Judicial Enforcement

Subd.1) Civil Judicial Enforcement

The Director may request the Tribal Prosecutor to file an action for a temporary restraining

order, a preliminary injunction, a permanent injunction or any other relief provided by law,

including the assessment and recovery of civil penalties in an amount per day per violation not to

exceed $25,000, in any of the following instances:

a) whenever a Person has violated, or is in violation of, any provision, requirement or

prohibition of this Code, including, but not limited to, a regulation adopted pursuant

to this Code or an order issued pursuant to this Code;

b) whenever a Person has violated, or is in violation of, any duty to allow or carry out

inspection, entry, or monitoring activities; and

c) whenever an activity exists that may endanger or cause damage to the public health or

welfare or the environment, in which case the Director shall request the Tribal

Prosecutor to pursue injunctive relief, but not the assessment of penalties, unless the

endangerment to the public health is caused by a violation, as specified in paragraphs

a and b of this subdivision.

Subd.2) Suits for Costs

In addition to the above proceedings, the Director is authorized to initiate proceedings, separately

or in connection with a proceeding brought under this Code, for any damages caused to the lands

or other resources of the White Earth Nation as the result of any violation of this Code, including

for payment of costs related to all associated remedial actions taken, for any expenses incurred in

investigating and evaluating such damages, for any administrative costs incurred as a result of

the matter, and for the reasonable value of the attorney time and expenses associated with such

proceedings.

Subd.3). Jurisdiction and Venue

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Any action under this section shall be brought in the White Earth Tribal Court, and such Court

shall have jurisdiction to restrain such violation, require compliance, assess civil penalties,

collect any fees or noncompliance penalties owed the White Earth Nation under this Code, and

award any other appropriate relief.

Subd. 4) Calculation of Penalties; Notice

a) For purposes of determining the number of days of violation for which a civil penalty

may be assessed under this section or § 1220.00, if the Director has notified the source in

writing of the violation and a prima facie showing can be made that the conduct or events

giving rise to the violation are likely to have continued or recurred past the date of notice,

the days of violation shall be presumed to include the date of such notice, each day of

violation prior to such notice, and each day thereafter until the violator establishes that

continuous compliance has been achieved, except to the extent that the violator can prove

by a preponderance of the evidence that there were intervening days during which no

violation occurred or that the violation was not continuing in nature. Notice under this

section shall be accomplished by the issuance of a written notice of violation or written

order to comply or by filing a complaint in White Earth Tribal Court that alleges any

violation described in subdivision 1 of this section.

b) In determining the amount of a civil penalty assessed under this section, the Court shall

consider the history, seriousness, and duration of the violation; any good faith efforts to

comply with the applicable requirements; the violator(s) full compliance history,

including the severity and duration of past violations, if any; the economic impact of the

penalty on the violator; as an aggravating factor only, the economic benefit, if any,

resulting from the violation; and any other factors that the Court deems relevant. The

Court may assess penalties for noncompliance with actions under subchapter 3 where the

violator does not have sufficient cause to violate or fail or refuse to comply with such

action.

c) All penalties collected pursuant to this section shall be deposited in the account

established pursuant to § 1205.00, subdivision 3.

d) In lieu of or in addition to a monetary penalty, the Director may impose or may request

the Tribal Prosecutor to seek from the Court a requirement to remediate the damage

caused or to perform community service, or both.

Subd.5) Security

The White Earth Tribal Court may, if a temporary restraining order or preliminary injunction is

sought, require the filing of a bond or equivalent security.

Subd.6) Enforcement of Judgments

All judgments entered under this section and §§ 1219.00 and 1220.00 may be enforced by

execution, levy, sale, redemption, garnishment, and contempt pursuant to the White Earth Band

of Chippewa Judicial Code.

W.E.E.C, 1223.00 Citizen Suits

Subd.1) Authority to Bring Civil Action; Jurisdiction

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a) Except as provided in subdivision 2 of this section, a Person may commence a civil

action in the White Earth Tribal Court on his own behalf against any Person (except the

White Earth Tribal Nation or any instrumentality of the White Earth Tribal Nation, but

not excepting tribal enterprises) who is alleged to be in violation of any provision,

requirement or prohibition of this Code, including but not limited to a regulation adopted

pursuant to this Code or an order issued under this Code.

b) The White Earth Tribal Court shall have jurisdiction to enforce such provision,

requirement, prohibition, regulation, or order, to order such Person to take such other

action as may be necessary, and to apply any appropriate civil penalties.

Subd.2) Notice

An action may not be commenced under subdivision 1 of this section fewer than 60 days after

the Person bringing the claim has given notice of the alleged violation to the Director, the Tribal

Prosecutor and the alleged violator. In addition, an action may not be commenced if the Director

has commenced and is diligently prosecuting an administrative action or a civil action in Court to

require compliance with this Code, except that any Person may intervene as a matter of right in

an action filed with the White Earth Tribal Court

Subd.3) Intervention; Service of Complaint

a) The Director, if not already a party, may intervene as a matter of right in any action

brought under this section.

b) Whenever an action is brought under this section the Person bringing the claim shall

serve a copy of the complaint on the Tribal Prosecutor and on the Director. In an action

brought under this section in which the Director is not a party, no consent judgment may

be entered prior to 45 days following the receipt of a copy of the proposed consent

judgment by the Tribal Prosecutor and the Director, during which time the Tribal

Prosecutor and the Director may submit, on behalf of the White Earth Tribal Nation, their

comments on the proposed consent judgment to the White Earth Tribal Court and parties

or the Director may intervene as a matter of right.

Subd.4) Award of Costs

The Court, in issuing a final order in an action brought under this section, may award costs of

litigation (including reasonable attorney and expert witness fees) to any party whenever the

Court determines that such award is appropriate. The Court may, if a temporary restraining order

or preliminary injunction is sought, require the filing of a bond or equivalent security.

Subd.5) Penalty Fund

Penalties received under this section shall be deposited in the account established pursuant to §

1205.00, subdivision 3.

W.E.E.C, 1224.00 Rulemaking

Subd.1) Notice of any proposed regulation shall be published in a newspaper of general

circulation for the areas of the White Earth Tribal Nation that are concerned. The notice shall

specify the period available for public comment; the date, time and place of any public hearing;

and the location of a copy of the proposed regulation that is available to the public for review.

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Not later than the date of proposal of the regulation in question the Director shall establish a

rulemaking docket and shall make the docket available to the public for inspection and copying

during regular business hours. The Director shall provide a comment period of at least 30

calendar days; allow any Person to submit written comments, data, or documentary information;

give interested Persons an opportunity to present orally their views, data, or arguments; and keep

the docket open for 20 calendar days after such proceeding to provide an opportunity for

submission of rebuttal and supplementary information.

Subd.2) The final regulation shall be based on the record of the rulemaking proceeding,

contained in the docket, and shall be accompanied by an explanation of the reasons for any major

changes from the proposed regulation and a response to each of the significant comments

submitted in written or oral presentations during the comment period.

W.E.E.C. 1225.00 Review in the White Earth Tribal Court

Subd.1) Petitions for Review

Any final action taken by the Director under this Code, including but not limited to promulgation

of regulations and standards, issuance of orders, issuance and denial of permits, and imposition

of administrative penalties, is subject to review in the White Earth Tribal Court. Any such

petition for review (except for petitions for review of administrative penalties imposed under §

1220.00, which are subject to review under § 1220.00, subdivision 4) shall be brought in the

White Earth Tribal Court. The petition shall be filed within 60 days from the date that notice of

such final action is first published, or, if notice is not published, first served upon the alleged

violator or such other Person required to be served under this Code, except that if the petition is

based solely on grounds arising after the sixtieth day, then the petition shall be filed within 60

days after such grounds arise.

Subd.2) Limited Waiver of Sovereign Immunity

The White Earth Tribal Nation consents to the judicial review provided for in this section. This

consent to jurisdiction shall be construed as a limited waiver of the White Earth Tribal Nation’s

sovereign immunity from suit only to the extent necessary to enforce this Code. This limited

waiver shall not extend to any action initiated pursuant to § 1223. All other rights, privileges and

immunities of the White Earth Tribal Nation are hereby expressly asserted or reserved to the

Nation.

Subd.3) Limitations on Review

a) If judicial review of a final action of the Director could have been obtained under

subdivision | of this section, that action shall not be subject to judicial review in judicial

proceedings for enforcement.

b) With respect to any regulations promulgated under this Code, only an objection that was

raised with reasonable specificity during the public comment period may be raised during

judicial review. If the Person raising an objection can demonstrate to the Director that it

was impracticable to raise the objection within such time or if the grounds for the

objection arose after the public comment period (but within the time specified for judicial

review), and if the objection is of central relevance to the outcome of the regulation, the

Director shall convene a proceeding for reconsideration of the regulation and provide the

108

same procedural rights as would have been afforded had the information been available at

the time the regulation was proposed. If the Director refuses to convene such a

proceeding, the Person may seek review of such refusal in the White Earth Tribal Court.

Such reconsideration shall not postpone the effectiveness of the regulation, although it

may be stayed by the Director or the Court for up to three months, at the discretion of

either the Director or the Court.

c) Except as otherwise expressly allowed by tribal law, no interlocutory appeals shall be

permitted with regard to determinations made by the Director under this Code. In

reviewing alleged procedural errors, the Court may invalidate the regulation only if the

errors were so serious and related to matters of such central relevance to the regulations

that there is a substantial likelihood that the regulations would have been significantly

changed if such errors had not been made.

Subd.4) Standards for Review

In reviewing any final action of the Director undertaken pursuant to this Code, the Court may

reverse any such action that it finds to be:

a) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the

law; or

b) In excess of statutory jurisdiction, authority, or limitations or short of statutory right;

or

c) Without observance of procedure required by law; or

d) Unsupported by substantial evidence.

109

WHITE EARTH RESERVATION TRIBAL COUNCIL

A/K/A WHITE EARTH BUSINESS COMMITTEE

WHITE EARTH BAND OF CHIPPEWA INDIANS

Resolution No. Ob] ~ 5 * 00a

WHEREAS, the White Earth Reservation Tribal Council is the duly elected governing body of the

White Earth Reservation pursuant to Article IV, Section 1, of the Revised Constitution of

the Minnesota Chippewa Tribe, as amended, and organized under Section 16, of the Act

of June 18, 1934 (18 Stat. 984), and

WHEREAS, the White Earth Reservation Tribal Council, also known as the White Earth Reservation

Business Committee, is the duly authorized governing body of the White Earth Band,

and

WHEREAS, the White Earth Reservation Tribal Council is the duly elected governing body of the

White Earth Reservation and is organized under Section 16 of the Act of June 18, 1934

(48 Stat. 984) as amended and pursuant to the Revised Constitution and Bylaws of the

Minnesota Chippewa Tribe, and

WHEREAS, the White Earth Reservation Tribal Council has established the Natural Resources

Department, which consists of: Conservation/Enforcement, Environmental Affairs,

Water Quality, Cultural Resources/Archives, Forestry, Land Office, Zoning, Fisheries,

Wildlife, Wild Rice and Agriculture, and Pesticides/Emergency Management, and

WHEREAS, it is the intent of the White Earth Reservation Tribal Council to effectively, efficiently

and properly manage the natural resources of the Reservation, and

WHEREAS, the White Earth Reservation Tribal Council adopted an Environmental Code on January

31, 2011, pursuant to RTC Resolution No. 057-11-001, which provided for the

protection, management, enforcement and enhancement of all Natural Resources

within the reservation boundaries, and

WHEREAS, the White Earth Reservation Hazardous Substances Code provides an amendment to the

Environmental Code that will further and enhance the Reservation Tribal Council’s goal

of effectively, efficiently and properly managing the Reservation’s natural resources.

THEREFORE, BE IT RESOLVED, that the White Earth Reservation Tribal Council does hereby adopt the

White Earth Reservation, Hazardous Substance Code as Chapter 12 of the White Earth Reservation,

Environmental Code for the effective management and enforcement of hazardous substances within the

Reservation boundaries, and that the Hazardous Substance Code will be effective January 1, 2015.

We do hereby certify that the foregoing resolution was adopted by a vote of aa for, a) against,

oO silent, a quorum being present at a special meeting of the White Earth Reservation Tribal Council

held on Novem be , 2014 in innesota.

Ztonwv AP zbtit-

Erma Vizenor, Chafpdioma

ear re

Tara Mason, Secretary-Treasurer