PONCA TRIBE OF NEBRASKA

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TITLE XVII

ENVIRONMENT

CHAPTER 1

GENERAL PROVISIONS

Section 17-1-1.

Purpose.

The Tribe wishes to exercise its

sovereignty and federal delegated authority to protect the

environment within the territory of the Tribe and, therefore, the

purpose of this Title is:

To protect the Tribe’s rights reserved under treaties

and the environment and natural resources within the territory of

the Tribe;

To protect the Tribe and its members from adverse health

effects resulting from contamination of the land, air, and water;

To prevent, reduce, minimize, and, where practicable,

eliminate harm to the environment by fostering relationships to

encourage and assist action by industry, public authorities, and

the community aimed at pollution prevention, clean production and

technologies, education, re-use and recycling of material and

natural resources, and waste minimization;

To coordinated activities, policies, and programs

necessary to prevent, reduce, minimize, or eliminate environmental

harm and ensure effective environmental protection, restoration,

and enhancement;

To coordinate with other governments to create

appropriate intergovernmental arrangements promoting greater

uniformity and effectiveness in environmental protection; and

To prevent potentially harmful activities

progressively make environmental improvements.

and

Section 17-1-2.

Definitions.

Unless the context requires

otherwise or another definition is provided for a particular

chapter or section, in this Title:

“Department” means the Ponca

Environmental Protection Department.

Tribe

Nebraska

“Environment” means any and all surface water, ground

water, drinking water supply, land surface, subsurface, air, fish,

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wildlife, plant life, and other biota within the territory of the

Tribe or otherwise under the jurisdiction of the Tribe.

“Operator” means any person, other than the Tribe, who

operates, controls, or has responsibility for the operation of a

site, property, or activity.

“Owner” means any person, other than the Tribe, who

alone, or jointly or severally with others, has legal title to any

site, property, or activity or has care, charge, or control of any

site, property, or activity as agent, executor, administrator,

trustee, lessee, commercial lessee, or guardian of the estate of

the holder of legal title, or is the contract purchaser of a site,

property, or activity.

“Pollutant” means 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 harm, death, disease, behavioral

abnormalities, cancer, genetic mutation, physiological

malfunctions (including malfunctions in reproduction), or

physical deformations in such organisms or their offspring;

By itself or in connection with any other element,

substance, compound, or mixture, will or tends to create a

public nuisance or be detrimental or injurious to the public

health, safety, or welfare, or harmful to the environment or

domestic,

commercial,

industrial,

agricultural,

recreational, or other legitimate beneficial uses of the

environment or livestock, wildlife, fish, or other biota;

Is considered or declared a pollutant, hazardous

substance, hazardous waste, hazardous chemical substance,

toxic substance, or otherwise dangerous or injurious to

humans, wildlife, biota, or the environment by any law of the

United States; or

Otherwise alters the physical, chemical, or

biological properties of the environment, including change in

temperature, taste, color, turbidity, silt, or odor.

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Section 17-1-3.

Territorial Jurisdiction.

The effective area of this Title shall extend to all

waters and lands in the territory of the Tribe, including the air

above and substances beneath all such lands and waters.

Where a person, whether by action or inaction, causes

significant environmental harm to occur within the territory of

the Tribe by conduct engaged outside the territory of the Tribe

and the conduct would, if affecting the area within the territory

of the Tribe, constitute a violation of this Title, the activity

shall be considered in violation of this Title.

Section 17-1-4.

Severability.

If any chapter, section or

provision of this Title or amendment made by this Title is held

invalid, the remaining chapters, sections and provisions of this

Title and amendments made by this Title shall continue in full

force and effect.

Section 17-1-5. Sovereign Immunity. Nothing in this Title shall

be construed as limiting, waiving, or abrogating the sovereignty

or the sovereign immunity of the Tribe or any of its agencies,

departments,

enterprises,

agents,

officers,

officials,

employees or as establishing or acknowledging any liability of the

Tribe under any law.

CHAPTER 2

ENVIRONMENTAL PROTECTION DEPARTMENT

Section 17-2-1.

Establishment.

There is hereby established an Environmental Protection

Department as an agency of the Tribe, under the authority of the

Tribe, and delegated the powers, duties, and responsibilities set

forth in this Title and as otherwise provided by the laws of the

Tribe.

The Department shall consist of an Environmental Manager

and such other personnel and employees as may be required.

Section 17-2-2. General Authority. The Department shall have the

following powers, duties, and responsibilities:

To administer, implement, and enforce this Title and

enforce and assist in the enforcement of all laws of the Tribe

relating to the protection and regulation of the environment;

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To make recommendations to the Tribal Council concerning

amendments to this Title and other laws of the Tribe protecting

and regulating the environment;

To bring legal action in the name of the Tribe to enforce

this Title;

To conduct investigations and gather information

necessary for the enforcement of this Title and other laws of the

Tribe protecting and regulating the environment;

To monitor, inspect, and ensure entities and persons

covered by this Title are in compliance with this Title and other

laws of the Tribe protecting and regulating the environment;

To obtain any information, including records and

reports, from any owner or operator necessary to determine whether

the owner or operator or any activity regulated pursuant to this

Title is in compliance with this Title and other laws of the Tribe

protecting and regulating the environment;

To conduct any independent monitoring or testing

necessary to ensure compliance with this Title or other laws of

the Tribe protecting and regulating the environment;

To collaborate and cooperate with such other agencies of

the Tribe, other tribes, the United States and the states as

necessary to implement and enforce this Title or other laws of the

Tribe protecting and regulating the environment;

To utilize or adopt forms, guidance, and other standards

from other appropriate jurisdictions to use as its own so long as

such forms, guidance, or other standards meet the requirements of

the laws of the Tribe for which such forms, guidance, or other

standards are utilized;

10. To promulgate rules and regulations, subject to approval

of the Tribal Council and consistent with the laws of the Tribe,

which are necessary for carrying out this Title;

11. To perform all other duties delegated or assigned to the

Department by this Title or other laws of the Tribe or the Tribal

Council and otherwise implement this Title.

Section 17-2-3.

Rules and Regulations.

The Department may

promulgate rules and regulations, not inconsistent with this Title

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and subject to the approval of Tribal Council, as it deems

necessary or desirable in the public interest in carrying out the

duties of the Department.

Section 17-2-4.

Use of Other Resources.

duties and responsibilities:

In carrying out its

The Department may, subject to any laws or rules

governing confidentiality of information, use the services,

information, or records of other departments and agencies of the

Tribe or otherwise available to the Tribe, both from within and

without the Tribe, and such departments, agencies, and others shall

furnish such services, information or records upon request of the

Department;

The Department may refer matters for investigation to

state or federal authorities or other appropriate professionals or

authorities and the Department may adopt and treat the results of

any such referred investigation, including any determinations

therein, as its own, which shall then be treated as though

conducted directly by the Department; and

The Department may rely upon and adopt an investigation,

including

any

determinations

therein,

made

another

investigating agency or authority as its own and such investigation

shall be treated as though conducted directly by the Department.

Section 17-2-5.

Inspection Authority.

For the purpose of enforcing the provisions of this

Title, the Department shall have the authority to enter and inspect

any property, premises, or place during regular business hours in

which a pollutant is reasonably believed to be located or in which

relevant records may be located for the purpose of determining the

compliance or noncompliance with any provision of this Title or

any rule or regulation of the Department.

If entry or inspection pursuant to this Section is denied

or not consented to, the Department may obtain from the Tribal

Court a warrant to enter and inspect any such property, premises,

or place prior to entry and inspection. The Tribal Court shall

issue such warrants upon a showing that such entry and inspection

is required to verify that the purposes of this Title are being

carried out.

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Section 17-2-6.

Cease and Desist Orders.

If the Department determines that there exists a

violation of any provision of this Title or any rule or regulation

of the Department, the Department may issue a cease and desist

order. Such order shall set forth:

The specific provisions of this Title or rule or

regulation of the Department alleged to have been violated;

The facts alleged to constitute the violation; and

The time by which acts or practices complained of

must be terminated.

In the event any person fails to comply with a cease and

desist order, the Department may bring an action in the Tribal

Court for a temporary restraining order, preliminary injunction,

permanent injunction, or other appropriate relief to prevent any

further or continued violation of such order.

In addition to any other consequences for a violation of

this Title or rule or regulation of the Department, any person who

fails to comply with any cease and desist order, including

necessitating the enforcement of such order in Tribal Court, shall

be subject to a civil fine of up to ten thousand dollars ($10,000)

per day for each day during which such violation occurs.

Section 17-2-7.

Notice of Violation.

If the Department has reason to believe that a violation

of this Title or rule or regulation of the Department has occurred,

the Department shall issue a notice of violation to all persons

accused of the violation.

A notice of violation shall state:

The specific provisions of this Title or rule or

regulation of the Department alleged to have been violated;

The Department will consider any written response

to the notice of violation from the accused before determining

whether to proceed with the notice of violation; and

The accused may respond in writing to the notice of

violation within fourteen (14) calendar days of service of

the notice.

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If a notice of violation is not delivered to a person

accused of the violation personally at the time of issuance, it

shall be served on such person in the manner provided for service

of a summons in the rules of procedure governing civil actions in

Tribal Court.

The accused shall have the right to respond to a notice

of violation within the time stated in the notice of violation.

The accused may include copies of any documents which the accused

believes support his or her position.

After the time has expired for the accused to respond to

a notice of violation, the Department shall consider any written

response to the notice of violation and determine how to proceed

with the notice of violation. Based on its review, the Department

may:

Close the notice of violation if satisfied by the

accused’s response; or

Conduct or cause to be conducted

investigation of the notice of violation.

thorough

If an investigation is conducted and such investigation

reveals that there is evidence to support that a violation of this

Title or rule or regulation of the Department has occurred, the

Department shall determine an appropriate sanction for such

violation as provided in this Title, including civil fine, cease

and desist, cleanup, and/or remediation, and impose such sanction

in accordance with the provisions of this Title.

Written notice shall be provided of the Department’s

decision under this Section.

Section 17-2-8. Appeal and Review. The Department may permit or

require, pursuant to the rules and regulations of the Department,

one or more levels of review of its orders and decisions by its

employees or delegates, provided that the failure to proceed to a

next required level of review shall constitute a waiver of any

further appeal or judicial review.

Section 17-2-9.

Judicial Review.

If a party is aggrieved by any final order or decision

of the Department, the party may challenge the final order or

decision by filing a petition requesting judicial review of the

order or decision in the Tribal Court.

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Judicial review of the Department’s order or decision

shall proceed in accordance with the following:

The petition for judicial review shall be filed

within thirty (30) days of the issuance of the Department’s

final order or decision;

No new or additional evidence may be introduced,

but the matter shall be heard on the record established before

the Department;

No new or additional issues may be raised and only

issues raised before the Department may be heard regardless

of the Department’s authority to hear the issue;

The Tribal Court shall uphold all factual findings

of the Department unless the Tribal Court concludes that such

findings are not supported by the substantive evidence in the

record established before the Department;

In reviewing legal conclusions reached by the

Department, the Tribal Court shall give proper weight to the

Department’s interpretation of this Title and any rules and

regulations of the Department;

The Tribal Court may affirm, reverse, modify, or

vacate and remand the Department’s order or decision, but

shall affirm the order or decision unless the Tribal Court

concludes that the order or decision of the Department is:

Not supported by the evidence;

ii.

Arbitrary or capricious;

iii. An abuse of discretion;

iv.

Beyond the Department’s authority; or

Otherwise contrary to the laws of the Tribe.

The Tribal Court shall dismiss any action brought

against the Department if the person filing the action has not

exhausted all administrative remedies before the Department.

Notwithstanding anything to the contrary in this Title,

the Tribal Court shall not have jurisdiction or authority to award

or order the payment of damages or other monies or provide any

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remedy to a party except for affirming, reversing, modifying, or

vacating and remanding the decision of the Department.

The Tribal Court’s jurisdiction to review a final order

or decision of the Department shall be exclusive and a final

decision of the Department shall not be subject to appeal, review,

challenge, or other action in any court or tribunal except as

provided in this Section.

Section 17-2-10.

Reporting of Violations.

The Department may

report any violation of this Title or other applicable law

regulating or protecting the environment to the appropriate

officials of other jurisdictions and request an investigation and,

if appropriate, prosecution of such violation as a violation of

the laws of that jurisdiction, including the criminal laws of that

jurisdiction.

Section 17-2-11.

Civil Penalties.

In addition to any other

consequences for a violation of this Title or rule or regulation

of the Department, any person who violates any provision of this

Title or any rule or regulation of the Department shall be subject

to a civil fine of up to ten thousand dollars ($10,000) per day

for each day during which such violation occurs.

Section 17-2-12.

Sovereign Immunity in Enforcement.

Except for valid judicial review of a final order or

decision of the Department as provided in this Chapter, nothing in

this Title shall be construed as limiting, waiving, or abrogating

the sovereignty or the sovereign immunity of the Department or any

of its agents, officers, officials, personnel or employees.

An action brought or taken by the Department, including

without limitation, the bringing of suit for the collection of

fines, enforcing an order, or enjoining an activity, shall not

constitute a waiver of sovereign immunity as to any counterclaim,

regardless of whether the asserted counterclaim arises out of the

same transaction or occurrence or in any other respect.

No economic enterprise of the Tribe may claim sovereign

immunity as a defense to any action brought or taken by the

Department, including a suit for the collection of fines, enforcing

an order, or enjoining an activity of such economic enterprise

and, to the extent necessary, the Tribe waives the sovereign

immunity of its economic enterprises in any action brought or taken

by the Department against such economic enterprise.

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CHAPTER 3

GENERAL ENVIRONMENTAL PROTECTION

Section 17-3-1. Protection of Environment Generally.

No person shall undertake any activity in the territory

of the Tribe that will, or has the possibility to, pollute or harm

the environment.

Every person shall take all reasonable measures to

prevent or minimize any environmental harm from any activity

conducted within the territory of the Tribe. In determining what

measures are required to be taken under this subsection, regard

shall be taken to, amongst other things:

The nature of the activity and the potential harm

and the sensitivity of the receiving environment; and

The current state of technical knowledge and

likelihood of successful application of the various measures

that might be taken.

Where environmental harm can only be minimized through

the application of reasonable and practical measures, the person

causing the harm shall mitigate for the harm by replacing,

restoring, or acquiring equivalent resources as those lost or

potentially lost due to the harm.

Section 17-3-2. Waste Disposal. The storage, burial, or disposal

of any pollutant within the territory of the Tribe is absolutely

prohibited.

Section 17-3-3.

site if:

Contamination of Sites.

For purposes of this Title, contamination exists at a

One or more pollutants are present on or below the

surface of the site in concentrations above the background

concentrations, if any;

The pollutant has, at least in part, come to be

present there as a result of an activity at the site or

elsewhere; and

The presence of the pollutant has resulted in

actual or potential harm to water, the environment, or the

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health or safety of human beings, animals, plants, or wildlife

that is not trivial, taking into account current or reasonable

potential land uses.

For the purposes of this Title, a pollutant can result

in harm regardless of whether:

The harm is a direct or indirect result of the

presence of the pollutant; and

The harm results from the presence of the pollutant

alone or the cumulative effects of the presence of the

pollutant and other factors.

Contamination of a site is an environmental harm. Where

contamination of a site exists due to a violation of the duty of

reasonable care with respect to pollutants or other substances

with the potential to pollute the environment and cause an

environmental harm, contamination of a site shall be considered

environmental negligence.

Section 17-3-4. Notice of Site Contamination. Any person who is

an owner or operator where contamination of a site has occurred or

is at substantial risk of occurring (other than a release expressly

permitted by the Tribe or the United States) shall immediately

notify the Department of such contamination as soon as he or she

has knowledge of such contamination, but not more than twenty-four

(24) hours from the time of knowing of the contamination.

The

Department shall convey the notification expeditiously to all

appropriate departments and agencies of the Tribe and other

governments.

Section 17-3-5.

Clean Up of Contaminated Sites.

Whenever there is a contamination of a site or a

substantial threat of contamination of a site, the Department is

authorized to act to remove or arrange for the removal of such

contamination and provide for remedial action relating to such

site at any time.

Whenever the Department is authorized to act pursuant to

this Section, the Department may undertake such investigations,

monitoring, surveys, testing, and other information gathering as

it deems necessary or appropriate to identify the existence and

extent of the contamination, the source and nature of the

contamination, the pollutants involved, and the extent of danger

to the public health or welfare or to the environment.

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addition, the Department may undertake such planning, legal,

fiscal, economic, engineering, architectural, and other studies or

investigations as it may deem necessary or appropriate to plan and

direct response actions, to recover the costs thereof, and to

enforce the provisions of this Title.

Section 17-3-6.

Clean-up Orders.

The Department may issue orders to any person to clean

up any contamination at a site which he or his employee or agent

has accidentally or purposely dumped, spilled, or otherwise

deposited at the site.

In the event any person fails to comply with a clean-up

order, the Department may bring an action in the Tribal Court for

any appropriate relief to force such person to comply with the

order.

In addition to any other consequences for a violation of

this Title or rule or regulation of the Department, any person who

fails to comply with a cleanup order, including necessitating the

enforcement of such order in Tribal Court, shall be subject to a

civil fine of up to ten thousand dollars ($10,000) per day for

each day during which such violation occurs.

Section 17-3-7.

Voluntary Cleanup Plans.

When the Department determines that removal and remedial

action of a contaminated site will be done properly and promptly

by the owner or operator or by any other responsible party, the

Department may allow such person to carry out the removal and

remedial action in accordance with this Section.

Any owner or operator may submit an application for the

approval of a voluntary cleanup plan to the Department under the

provisions of this Section.

A voluntary cleanup plan shall include:

An environmental assessment of the site which

describes the contamination or risk of contamination on the

site and the risk the contamination currently poses to public

health and the environment and includes:

The legal description of the site and a map

identifying the location and size of the site;

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ii. The physical characteristics of the site and

areas contiguous to the site, including the location of

any surface water bodies and groundwater aquifers;

iii. The location of any wells located on the site

or on areas within a one-half (1/2) mile radius of the

site and a description of the use of those wells;

iv. The

groundwater;

current

and

proposed

use

on-site

The operational history of the site and the

current use of areas contiguous to the site;

vi.

The present and proposed uses of the site;

vii. Information concerning the nature and extent

of any contamination and releases of pollutants which

have occurred at the site including any impacts on areas

contiguous to the site;

viii.

Any sampling results or other data which

characterizes the soil, groundwater, or surface water on

the site; and

ix. A description of the human and environmental

exposure to contamination at the site;

A proposal, if needed, to clean up and remediate

any contamination or condition which has or could lead to

contamination and a timetable for implementing the proposal

and for monitoring the site after the proposed measures are

completed; and

An agreement and consent to allow the Department to

enter and inspect the site, property, or activity at any time

until the voluntary cleanup plan is completed without the

requirement of any warrant or order of the Tribal Court.

Any environmental assessment submitted to the Department

under this Section shall be prepared by a qualified environmental

professional. A qualified environmental professional is a person

with

education,

training,

and

experience

preparing

environmental studies and assessments.

Remediation alternatives in any voluntary cleanup plan

shall be based on the actual risk to human health and the

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environment currently posed by any

considering the following factors:

pollutant

the

site,

The present or proposed uses of the site;

The ability of the pollutant to move in a form and

manner which would result in exposure to humans and the

surrounding environment; and

The potential risks associated with proposed

cleanup alternatives and the economic and technical

feasibility and reliability of such alternatives.

The Department shall provide formal written notification

that a voluntary cleanup plan has been approved or disapproved

within no more than forty-five (45) days after a request by an

applicant, unless the applicant and the Department agree to an

extension of the review to a date certain. Such review shall be

limited to a review of the materials submitted by the applicant

and documents or information readily available to the Department.

The Department shall approve a voluntary cleanup plan

if, based on the information submitted by the applicant, the

Department concludes that the plan will attain a degree of cleanup

and control of pollutants that complies with all applicable laws,

requirements, criteria, or standards or otherwise reduces

concentrations such that the site does not present an unacceptable

risk to human health or the environment.

In the event that a voluntary cleanup plan is not

approved by the Department, the Department shall promptly provide

the applicant with a written statement of the reasons for such

denial. An applicant shall be permitted to resubmit a voluntary

cleanup plan with appropriate changes based on the Department’s

reasons for denial.

The approval of a voluntary cleanup plan by the

Department applies only to conditions on the site and standards

that exist as of the time of submission of the application.

10. An approval by the Department of a voluntary cleanup

plan pursuant to this Section shall be rendered void if the

applicant:

Fails to

cleanup plan; or

materially

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comply

with

the

voluntary

Submits materially misleading information in the

context of the voluntary cleanup plan.

11. If a voluntary cleanup plan is not initiated within

twelve (12) months and completed within twenty-four (24) months

after approval by the Department, such approval shall lapse. The

Department may grant an extension of the time limit for completion

of a voluntary cleanup plan if the applicant submits a written

request for re-application accompanied by written certification of

a qualified environmental professional that the conditions on the

site are substantially similar to those that existed at the time

of the original approval. Any re-application where the conditions

at the site have substantially changed since approval of the

original voluntary cleanup plan shall be treated as a new

application.

12. Within forty-five (45) days after the completion of a

voluntary cleanup described in the voluntary cleanup plan approved

by the Department, the applicant shall provide to the Department

a certification from a qualified environmental professional that

the plan has been fully implemented.

13. If an applicant or owner or operator fails to materially

comply with a voluntary cleanup plan or initiate and complete the

voluntary cleanup plan within the time permitted, the Department

may issue a cleanup order pursuant to this Chapter.

14. In no event shall a potentially responsible party be

subject to a lesser standard of liability, receive preferential

treatment, or in any other way, whether direct or indirect, benefit

from any voluntary cleanup arrangement.

Section 17-3-8.

Owner and Operator Liability.

The owner and operator of any property or activity shall

be jointly and severally liable and responsible for the full costs

of any and all cleanup, remediation, and testing of contamination

at a site as well as the Department’s fees and costs of

administering notices and enforcing cleanup, remediation, and

testing of the site.

In addition to any other methods allowed by the laws of

the Tribe or other applicable law, the Department may collect any

costs for which an owner or operator is responsible under this

Section through an action in Tribal Court or any other court of

competent jurisdiction.

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Nothing in this Section shall limit an owner’s, an

operator’s, or the Tribe’s right to recover costs from persons

contributing to the contamination of a site.

TC Approved 04/20/20

Resolution 20-25

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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.