(a) The beneficial stewardship of the land, air, and waters of the Colville Indian Reservation is a solemn obligation of the present generation for the benefit of future generations.

(b) Each person either residing on or doing business within the exterior boundaries if the Colville Indian Reservation ("Reservation Population") benefits from a healthful environment and each person has a responsibility to preserve and protect the quality of the Reservation Environment.

(c) The Colville Business Council finds that an emergency currently exists which requires the immediate action of the Council to secure the preservation of life, health, property, and natural resources of the Tribe, its people, and fee and trust lands. Pollution sources are currently known to, or suspected of, contaminating the Reservation air, land, surface water and ground waters ("Reservation Environment") for which existing federal law may not apply.

(d) The main purpose of this Chapter is to address the existing emergency and 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.

(a) The Department may exercise the following powers in addition to any other powers granted by Tribal or federal law:

(b) The Department shall to the best of its ability implement all provisions of this Chapter, including the cleanup standards further described in section 4-16-10 and to the maximum extent practicable, institute investigative and remedial actions where appropriate; and the Department shall:

(c) The Department may, as available resources permit, establish a program to identify potential hazardous waste sites and to encourage persons to provide information about hazardous waste sites.

(a) Except as provided in section 4-16-4(c), the following persons are liable with respect to a facility:

(b) Each person who is liable under this section is strictly liable, jointly and severally, for all remedial action costs and for all natural resource damages resulting from the releases or threatened releases of hazardous substances. The Department, is empowered to recover all costs and damages from persons liable therefor.

(d) There may be no settlement by the Department with any person potentially liable under this Chapter except in accordance with this subsection.

(e) In addition to the settlement authority provided under section 4-16-4(d), the Department may agree to a settlement with a person not currently liable for remedial action at a facility who proposes to purchase, redevelop, or reuse the facility, provided that:

(f) Nothing in this Chapter affects or modifies in any way any person’s right to seek or obtain relief under Tribal law, or other applicable laws, including but not limited to damages for injury or loss resulting from a release or threatened release of a hazardous substance. No settlement by the Department or remedial action ordered by the Tribal Court or the Department affects any person's right to obtain a remedy under Tribal law, or other applicable laws.

(a) With respect to any release, or threatened release, for which the Department does not conduct or contract for conducting remedial action and for which the Department believes remedial action is in the public interest, the Department shall issue orders or agreed orders requiring potentially liable persons to provide the remedial action. Any liable person who refuses, without sufficient cause, to comply with an order or agreed order of the Department is liable in an action brought by the Department for:

(b) The Department shall seek, by filing an action if necessary, to recover the amounts spent by the Department for investigative and remedial actions and orders, including amounts spent prior to the date this Chapter is enacted and adopted by the Council.

(c) The Department may request that the Office of Reservation Attorney bring an action to secure such relief as is necessary to protect human health and the environment under this Chapter.

The Department' s investigative and remedial decisions under sections 4-16-3 and 4-16-5 and its decisions regarding liable persons under sections 4-16-12(t) and 4-16-4 shall be reviewable exclusively in Tribal Court and only at the following times:

(b) In a suit by the Department to enforce an order or an agreed order, or seek a civil penalty under this Chapter; and

The court shall uphold the Department’s action unless they were arbitrary and capricious.

(a) There shall be established a hazardous waste account to be administered by the Department.

(c) Moneys in the hazardous waste account may be spent only after approval of a budget by the Council. All earnings from investment of balances in the account shall be credited to the account.

(a) A person may bring a private right of action, including a claim for contribution or for declaratory relief against any other person liable under section 4-16-4 for the recovery of remedial action costs, except that no private right of action may be brought against the following:

(b) Recovery shall be based on such equitable factors as the Tribal Court determines are appropriate. Natural resource damages paid to the Tribe under this Chapter may be recovered. Remedial action costs shall include reasonable attorneys' fees and expenses. Recovery of remedial action costs shall be limited to those remedial actions that, when evaluated as a whole, are the substantial equivalent of a Department-conducted or Department-supervised remedial action. Substantial equivalence shall be determined by the Tribal Court with reference to this Chapter. An action under this section may be brought after remedial action costs are incurred but must be brought within three (3) years from the date remedial action confirms cleanup standards are met. The prevailing party in such an action shall recover its reasonable attorneys' fees and costs.

(a) A person conducting a remedial action at a facility under a consent decree, order, or agreed order, and the Department when it conducts a remedial action, are exempt from the procedural requirements of all otherwise applicable Tribal laws. The Department shall ensure compliance with the substantive provisions of all otherwise applicable Tribal laws. The Department shall establish procedures for ensuring that such remedial actions comply with the substantive requirements adopted pursuant to such laws. The procedures shall provide an opportunity for comment by the public and by the Tribal agencies that would otherwise implement the laws referenced in this section. Nothing in this section is intended to prohibit implementing agencies from charging a fee to the person conducting the remedial action to defray the costs of services rendered relating to the substantive requirements for the remedial action.

(b) An exemption in this section or in any other applicable Tribal law shall not apply if the Department determines that the exemption would result in loss of approval from a federal agency necessary for the Tribe to administer any federal law, including the Federal Resource Conservation and Recovery Act; the Federal Clean Water Act; the Federal Clean Air Act; and the Federal Coastal Zone Management Act. Such a determination by the Department shall not affect the applicability of the exemptions to other statutes specified in this section.

(a) Surface water, groundwater, and soil cleanup standards: The cleanup standards enforced by the Department shall be those set forth in the State of Washington "Model Toxics Control Act" or, where the Tribe has adopted more stringent standards as set forth in Appendix A and Appendix B to this Chapter, the cleanup standards enforced by the Department shall be those standards set forth in Appendix A and Appendix B, which are incorporated in full herein by this reference.

Nothing in this Chapter shall be construed to constitute a waiver of the sovereign immunity of the Tribe, or of any instrumentality, agent, officer, or employee of the Tribe.

(a) "Attorney" or "Reservation Attorney" means the attorney authorized by the Council to carry out the duties as described in the Chapter.

(b) "Agreed Order" means an order issued by the Department under this Chapter with which the potentially liable person receiving the order agrees to comply.

(c) "Confederated Tribes of the Colville Reservation" means the Tribal government.

(d) "Council" means the Colville Business Council of the Confederated Tribes of the Colville Reservation.

(e) "Department" means the Environmental Trust Department of the Confederated Tribes of the Colville Reservation.

(g) "Federal Cleanup Law" means the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by Public Law 99-499.

(h) "Foreclosure and its equivalents" means purchase at a foreclosure sale, acquisition, or assignment of title in lieu of foreclosure, termination of a lease, or other repossession, acquisition of a right to title or possession, an agreement in satisfaction of the obligation, or any other comparable formal or informal manner, whether pursuant to law or under warranties, covenants, conditions, representations, or promises from the borrower, by which the holder acquires title to or possession of a facility securing a loan or other obligation.

(j) "Hazardous waste account" means an account of money set aside for uses described in section 4-16-7.

(k) "Holder" means a person who holds indicia of ownership primarily to protect a security interest. A holder includes the initial holder such as the loan originator, any subsequent holder such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market, a guarantor of an obligation, surety, or any other person who holds indicia of ownership primarily to protect a security interest, or a receiver, court-appointed trustee, or other person who acts on behalf or for the benefit of a holder. A holder can be a public or privately owned financial institution, receiver, conservator; loan guarantor, or other similar persons that loan money or guarantee repayment of a loan. Holders typically are banks or savings and loan institutions but may also include others such as insurance companies, pension funds, or private individuals that engage in loaning of money or credit.

(l) "Independent remedial actions" means remedial actions conducted without Department oversight or approval, and not under an order, agreed order, or consent decree.

(m) "Indicia of ownership" means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in a facility securing a loan or other obligation, including any legal or equitable title to a facility acquired incident to foreclosure and its equivalents. Evidence of such interests includes, mortgages, deeds of trust, sellers interest in a real estate contract, hens, surety bonds, and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased facility, or legal or equitable title obtained pursuant to foreclosure and their equivalents. Evidence of such interests also includes assignments, pledges, or other rights to or other forms of encumbrance against the facility that are held primarily to protect a security interest.

(n) "Operating a facility primarily to protect a security interest" occurs when all of the following are met:

(3) The term does not include:

(p) "Participation in management" means exercising decision-making control over the borrower's operation of the facility, environmental compliance, or assuming or manifesting responsibility for the overall management of the enterprise encompassing the day-to-day decision making of the enterprise.

(1) The term does not include any of the following:

(q) "Person" means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency of a Tribal instrumentality subject to a waiver of sovereign immunity.

(r) "Policing Activities" means actions the holder takes to insure that the borrower complies with the terms of the loan or security interest or actions the holder takes or requires the borrower to take to maintain the value of the security. Policing activities include: Requiring the borrower to conduct remedial actions at the facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, regulations, and permits during the term of the security interest; securing or exercising authority to monitor or inspect the facility including on-site inspections, or to monitor or inspect the borrower's business or financial condition during the term of the security interest; or taking other actions necessary to adequately police the loan or security interest such as requiring a borrower to comply with any warranties, covenants, conditions, representations, or promises from the borrower.

(s) "Potentially Liable Person" means any person whom the Department finds, based on credible evidence, to be liable under section 4-16-4. The Department shall give notice to any such person and allow an opportunity for comment before making the finding, unless an emergency requires otherwise.

(t) "Prepare a Facility for Sale, Transfer, or Assignment" means to secure access to the facility; perform routine maintenance on the facility; remove inventory, equipment, or structures; properly maintain environmental compliance measures already in place at the facility; conduct remedial actions to clean up releases at the facility; or to perform other similar activities intended to preserve the value of the facility where the borrower has defaulted on the loan or otherwise breached the security agreement or after foreclosure and its equivalents and in anticipation of a pending sale, transfer, or assignment, primarily to protect the holder's security interest in the facility. A holder can prepare a facility for sale, transfer, or assignment for up to one (1) year prior to foreclosure and its equivalents and still stay within the security interest exemption in section 4-16-12 (o), subpart (2)(b).

(u) "Primarily to Protect a Security Interest" means the indicia of ownership is held primarily for the purpose of securing payment or performance of an obligation. The term does not include indicia of ownership held primarily for investment purposes nor indicia of ownership held primarily for purposes other than as protection for a security interest. A holder may have other, secondary reasons, for maintaining indicia of ownership, but the primary reason must be for protection of a security interest. Holding indicia of ownership after foreclosure or its equivalents for longer than five (5) years shall be considered to be holding the indicia of ownership for purposes other than primarily to protect a security interest. For facilities that have been acquired through foreclosure or its equivalents prior to the date this Chapter is enacted and adopted by the Council, this five (5) year period shall begin as of the date of enactment and adoption.

(v) "Public Notice" means, adequate notice mailed to all persons who have made timely request of the Department; published in the Tribal Tribune; and may include an opportunity for interested persons to comment.

(w) "Reservation Environment" means the environment within the exterior boundaries of the Colville Indian Reservation and other lands held in trust status by the U.S. Government for the Tribe or its members.

(x) "Reservation Population" means persons residing within the Reservation Environment.

(y) "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 of hazardous substances.

(z) "Remedy" or "Remedial Action" means any action or expenditure consistent with the purpose of this Chapter to identify, eliminate, clean up, or minimize any threat of potential threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.

(aa) "Tribe" means the government of the Confederated Tribes of the Colville Reservation.

(bb) "Tribal Instrumentality" means a unit of Tribal government or a Tribal organization that is ultimately responsible to the Colville Business Council.

(cc) "Tribal Court" means the Tribal Court of the Colville Confederated Tribes as established in Amendment X of the Tribe's Articles and By-Laws.

The provisions of this Chapter are to be liberally construed to effectuate the policies and purposes of this Chapter. In the event of conflict between the provisions of this Chapter and any other act, the provisions of this Chapter shall govern.

The effective date of this Chapter shall be the date this Chapter is enacted and adopted by the Council. This Chapter shall apply retroactively.

If any provision of this Chapter or its application to any person or circumstance is held invalid, the remainder of the Chapter or the application of the provision to other persons or circumstances is not affected.