ENVIRONMENTAL CODE

OF THE WHITE MOUNTAIN APACHE TRIBE


TABLE OF CONTENTS



CHAPTER ONE - ESTABLISHMENT OF TRIBAL HAZARDOUS SUBSTANCES EMERGENCY PLAN

SECTION 1.1 PURPOSE
SECTION 1.2 DEFINITIONS
SECTION 1.3 RELATIONSHIP TO OTHER LAW
SECTION 1.4 TRIBAL EMERGENCY RESPONSE COMMISSION; POWERS AND DUTIES
SECTION 1.5 COMMISSION; GENERAL POWERS
SECTION 1.6 LOCAL EMERGENCY PLANNING COMMITTEE
SECTION 1.7 COMPREHENSIVE EMERGENCY RESPONSE PLANS
SECTION 1.8 EXTREMELY HAZARDOUS SUBSTANCES
SECTION 1.9 FACILITIES SUBJECT TO EMERGENCY PLANNING; FACILITY EMERGENCY RESPONSE PLANS
SECTION 1.10 EMERGENCY NOTIFICATION OF REPORTABLE RELEASES
SECTION 1.11 LISTS OF HAZARDOUS CHEMICALS; MATERIAL SAFETY DATA SHEETS 10
SECTION 1.12 EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORM 11
SECTION 1.13 TOXIC CHEMICAL RELEASE FORMS; DEFINITIONS
SECTION 1.14 INSPECTION BY TRIBAL FIRE AND RESCUE OR TRIBAL SAFETY OFFICER
SECTION 1.15 VIOLATION; PENALTIES AND INJUNCTIVE RELIEF
SECTION 1.16 IMMINENT DANGERS
SECTION 1.17 NOT A CONSENT TO BE SUED OR WAIVER OF SOVEREIGN IMMUNITY
SECTION 1.18 SEVERABILITY

CHAPTER TWO - TRIBAL SOLID WASTE PERMITTING PROGRAM

SECTION 2.1 AUTHORITY
SECTION 2.2 SCOPE AND DEFINITIONS
SECTION 2.3 RESTRICTION ON CONSTRUCTION
SECTION 2.4 AUTHORITY OF TRIBAL PERMITTING AUTHORITY
SECTION 2.5 RESERVED
SECTION 2.6 PERMITTING REQUIREMENTS
SECTION 2.7 COMPLIANCE MONITORING AUTHORITY
SECTION 2.8 ENFORCEMENT AUTHORITY


CHAPTER ONE

ESTABLISHMENT OF A TRIBAL HAZARDOUS

SUBSTANCES EMERGENCY PLAN



[Note: Chapter One is derived from Ordinance No. 194, which repeals Chapter Seven of the Government Code, Hazardous Materials Commission.]


SECTION 1.1 PURPOSE

This Chapter establishes a Tribal program for improved hazardous chemicals management in order to maintain a clean, healthy, and safe environment on the Fort Apache Indian Reservation. This Chapter establishes a Tribal Emergency Response Commission and a Local Emergency Planning Committee. This Chapter also sets forth facility notification requirements necessary for the development and implementation of a Tribal Emergency Response Plan. Additionally, the chapter contains reporting requirements which provide the Tribal community with important information on the nature, location, and quantity of hazardous chemicals in their community.


SECTION 1.2 DEFINITIONS

In this ordinance, unless otherwise provided:
1. "Commission" means the Tribal Emergency Response Commission.
2. "Committee" means a Local Emergency Planning Committee appointed by the Commission.
3. "Extremely Hazardous Substance", "Hazardous Chemical," and "Toxic Chemical" have the meaning set forth in Section 329 of Title III, 42 U.S.C. 11049, and regulations promulgated under Title III, currently found at 40 CFR 355 et seq.
4. "Emergency Response Organization" means any tribal, other governmental, or private entity equipped or created for responding to environmental, health, or other emergencies. This definition includes, among other things, federal agencies and their departments, police departments, hospitals, fire departments, emergency airlift or other medical response entities, and environmental clean-up or containment crews or companies.
5. "Facility" means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned and operated by the same person (or by any person which controls, is controlled by, or under common control with such person). Facility shall include manmade structures as well as all natural structures in which chemicals are purposely placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.
6. "Person" means any individual, trust, firm, joint stock company, corporation (including government and tribal corporations), partnership, association, State, Federal Government or Division or Agency thereof, Tribe, municipality, commission, political subdivision of a State or Tribe, or interstate body. However, nothing in this Chapter shall constitute of waiver of Tribal Sovereign Immunity.
7. "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any hazardous chemical, extremely hazardous substance, toxic chemical, or CERCLA hazardous substance.
8. "CERCLA Hazardous Substance" means a substance on the list defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (P.L. 96-510; 94 Stat. 2767), as amended by SARA, and regulations promulgated under CERCLA, currently located at 40 CFR 302.4.
9. "SARA" means the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499).
10. "Title III" means Title III of SARA, the federal Emergency Planning and Community Right-to-Know Act of 1986, as amended, found at 42 U.S.C. 11001.
11. "Reservation" means the Fort Apache Indian Reservation.


SECTION 1.3 RELATIONSHIP TO OTHER LAW

This article does not:
1. Affect or modify the obligations or liabilities of any person under federal law.


SECTION 1.4 TRIBAL EMERGENCY RESPONSE COMMISSION; POWERS AND DUTIES

A. The Tribal Emergency Response Commission of the White Mountain Apache Tribe shall be immediately established.

B. The Commission shall be composed of seven members: the director, manager, or chief, or their respective designees, of the (1) Tribal Police Department, (2) White Mountain Apache Tribal Fire and Rescue - Whiteriver (Tribal Fire and Rescue), (3) Tribal Emergency Medical Services, (4) Tribal Safety Department, (5) Tribal Planning Department (or other named Tribal department with primary responsibility for environmental protection and natural resources on the Reservation), (6) Tribal Legal Department, and (7) the Tribal Health Authority and may include 2 additional persons selected from the categories listed at Section 1.6B. The Chairperson of the Commission shall be the Chief of Tribal Fire and Rescue -Whiteriver, unless otherwise appointed by the Chairperson of the Tribal Council, by and with the advice and consent of the Tribal Council, from among the members of the Commission. The Chairperson of the Commission shall also appoint a coordinator for the Commission, who shall serve as the central contact for the regulated facilities.

C. Any member of the Commission may be removed by the Tribal Council upon the recommendation of a quorum of the Commission for inefficiency, neglect of duty, malfeasance, misfeasance or nonfeasance in office. A commission member may also be removed voluntarily upon request and approval by a quorum of the Commission and approval of the Tribal Council. Members of the Commission and the Chairperson of the Commission shall serve until so removed.

D. The members of the Commission shall serve without compensation but are eligible for reimbursement or prepayment for travel and other expenses incurred while fulfilling duties of the Commission.

E. The Commission shall meet as often as necessary and may organize itself into such support committees as necessary to implement this chapter and Title III on this Reservation. The full Commission shall meet at least semi-annually, but preferably, on a quarterly basis. The Commission may adopt internal operating rules.

F. A majority of the Commission shall constitute a quorum to transact business. When a vacancy occurs in the Commission, the remaining commissioners may exercise all the powers of the Commission until the vacancy is filled. The Commission shall annually elect a Vice-Chairperson to act in the absence or disability of the Chairperson or in case of vacancy in the office of Chairperson.

G. The Commission may maintain offices and hold regularly scheduled meetings in any place within the exterior boundaries of the Reservation. Sessions of the Commission shall be public, with notice provided through local media, including radio or news publication. The Commission shall develop rules providing for such reasonable notice, including provisions for emergency or other not regularly scheduled meetings. All proceedings of the Commission shall be shown on its record, which shall be a public record. The vote of each member shall be recorded. The Commission shall develop rules for maintaining such public record.

H. The Commission shall administer this chapter and rules adopted under this chapter. The Commission shall administer Title III on the Reservation and may conduct whatever activities are necessary to implement this article and Title III on the Reservation. The Commission possesses all the authority and responsibilities of a Tribal Emergency Response Commission for purposes of Title III, as set forth in this chapter.


SECTION 1.5 COMMISSION; GENERAL POWERS

A. The Commission has full power, jurisdiction and authority to:

1. Formulate and adopt rules, regulations and forms for affecting the purposes of this chapter. The authority to adopt rules includes establishing:

a. Procedures for handling public information requests.
b. Procedures and implementing programs for chemical emergency planning and preparedness.
c. Community right-to-know program reporting requirements.
d. Release reporting requirements, which may include reporting requirements in addition to those required by Federal law.
e. Means for supervising the activities of a Local Emergency Response Committee (LERC) if one is established under Section 1.6 of this ordinance.
2. Procure by contract the temporary or intermittent services of experts or consultants if such services are to be performed on a part-time or fee-for-services basis and do not involve the performance of administrative duties.
3. Prepare and coordinate proposals for federal grants available under Title III and any other relevant programs. The Commission may accept on behalf of the Tribe any reimbursement, grant, or gift, that may become available for purposes of this chapter. The Commission shall transmit any such monies to the Tribal treasurer for deposit in an account set up for the specific use of the Commission in fulfilling its duties.
4. Establish standard operating procedures for hazardous materials management and emergency response for members of the Commission and any department, enterprise, business, contractor or private party operating within the exterior boundaries of the Reservation.
5. Collect, collate and publish statistical and other information relating to hazardous materials within the exterior boundaries of the Reservation. The Commission shall prepare an annual report on hazardous materials management and emergency response for submission to the Tribal Council by December 31st of the reporting year. Tribal Fire and Rescue - Whiteriver shall provide computer support to implement and perform Commission duties and shall maintain a Centralized Hazardous Materials Database.
6. Conduct or participate in investigations of causes, origins, and circumstances of hazardous materials incidents within the exterior boundaries of the Reservation or affecting the Reservation populace or environment.
7. Provide training, and seek funding for such training, in the control, containment, transportation, and handling of hazardous materials and cooperate with other governments (local, state and federal), institutions and groups to provide and further such training.
8. Employ specialized testing services to evaluate evidence and conditions involved in hazardous materials incidents subject to the availability of funding for said purposes.
9. Any action taken by the Commission pursuant to Section 1.5 A1, 2, 3, and 4 shall be taken only upon approval by the Tribal Council.


SECTION 1.6 LOCAL EMERGENCY PLANNING COMMITTEE

A. The Reservation is designated as one emergency planning district for the purposes of preparing and implementing an Emergency Response Plan.

B. The Commission shall appoint members of a Local Emergency Planning Committee for the district. The Committee may include in addition to the Commission members, one or more representative from each of the following enumerated groups or organizations:
1. Elected Tribal officials
2. Law enforcement, civil defense, fire fighting, first aid, health, local environmental, hospital and transportation personnel.
3. Broadcast and print media.
4. Community groups.
5. Owners or operators of facilities subject to the requirements of this article.

C. The Committee shall appoint a chairperson and shall adopt procedural rules by which the Committee shall function including the requirements set forth in 301 of Title III. Such rules shall be effective upon approval by the Tribal Council.

D. The Commission, as it deems appropriate, may modify the designation of emergency planning districts in part A of this section. The Commission may also modify its appointments to the Local Emergency Planning Committee(s). Members of the public may petition the Commission to modify the membership of the Local Emergency Planning Committee(s).

E. The Commission shall, for the purposes of organizational simplicity and efficiency, serve as the Committee, unless 2 or more emergency planning districts are created for the Reservation at which time two separate committees will be created pursuant to the provisions of this code.


SECTION 1.7 COMPREHENSIVE EMERGENCY RESPONSE PLANS

A. The Committee shall comply with 303 of Title III.

B. Based on information from the Commission and Tribal Departments, as well as information obtained from facilities subject to this chapter and Title III, the Committee shall prepare and annually review an Emergency Response Plan in order to address emergencies due to releases from facilities and transportation vehicles in its emergency planning district. After completing the Emergency Response Plan, the Committee shall provide a copy of the plan to the Tribal Council and submit a copy to the Commission. The Commission shall review the plan and make recommendations to the Committee on revisions that may be necessary to ensure that it meets the requirements of this chapter or any rules adopted under this chapter. The Commission shall further ensure that the plan is coordinated with the emergency response plans of adjoining emergency planning districts, as applicable.

C. The Committee shall evaluate the need for resources necessary to develop, implement, and exercise the Emergency Response Plan in its district and shall make recommendations to the Commission with respect to the need for additional resources that may be required and the means for providing such additional resources.

D. The Emergency Response Plan shall include the provisions listed in 303C of Title III, such as a Hazards Analysis, and, in addition, shall include:
1. The identification of emergency response organizations (ERO) in, adjacent to, or otherwise available to the district. The EROs shall work with the Commission in making determinations necessary to implement the Emergency Response Plan.
2. A description of specialized equipment, facilities, personnel and emergency response organizations available in the district to respond to releases subject to this section.
3. Mutual aid agreements with other jurisdictions, and any allocation of emergency response resources for responding to releases subject to this section, if applicable.


SECTION 1.8 EXTREMELY HAZARDOUS SUBSTANCES

Unless otherwise provided in this chapter, a substance is subject to the requirements of this code if it is an extremely hazardous substance as listed and published by the administrator of the United States Environmental Protection Agency, or its successor, and it is held in quantities at or above the threshold planning quantity as established pursuant to 302 of Title III, currently found at 40 CFR 355, Appendix A and B, or as that section may be amended or revised in the future.


SECTION 1.9 FACILITIES SUBJECT TO EMERGENCY PLANNING; FACILITY EMERGENCY RESPONSE PLANS

A. A facility is subject to emergency planning requirements if a substance identified under Section 1.8 is present at the facility in an amount at or in excess of the threshold planning quantity for that substance.

B. The owner or operator of a facility subject to this section shall notify the Commission that such facility is subject to the requirements of this chapter pursuant to 302 of Title III.

C. The Commission may designate additional facilities which are subject to this Chapter. The designation shall be accomplished after notification to the facility of the proposed designation.

D. The owner or operator of a facility subject to this chapter shall provide to the Committee the identity of a facility representative who will participate in the emergency planning process as the facility emergency coordinator pursuant to 303 of Title III.

E. Upon request, the owner or operator of a facility subject to this chapter shall provide to the Committee any information necessary for developing and implementing the emergency plan. Such information may include:
1. Names, addresses and emergency telephone numbers of facility emergency coordinator and alternate.
2. Description of employee emergency response training and facility emergency preparedness programs.
3. Description of appropriate emergency equipment necessary to respond to a release.
4. Description of emergency response procedures including notification procedures and evacuation plans in the event of a release.
5. Identification of transport routes and transportation methods used to transport extremely hazardous substances to and from the facility.
6. Identification of hazardous substances or hazardous chemicals present at the facility, including submittal of Material Safety Data Sheets or other information as provided for in this Chapter.

F. Facilities shall work with the Commission and Committee to reduce, to the maximum extent practicable, inventories of Extremely Hazardous Substances, hazardous chemicals, and toxic chemicals.


SECTION 1.10 EMERGENCY NOTIFICATION OF REPORTABLE RELEASES

A. If a release of a reportable quantity of an extremely hazardous substance or CERCLA hazardous substance occurs from a facility or transportation vehicle, the owner or operator of the facility or transportation vehicle or unit, except as excluded under 40 CFR 355.40, shall immediately notify Tribal Fire and Rescue (1st) and the White River Police Department (2nd). Such notification shall be in accordance with 304 of Title III and regulations promulgated thereunder, which are currently found at 40 CFR 355.

B. The notification shall occur immediately after the facility emergency coordinator or designee, or operator or owner of the transportation vehicle has knowledge of the reportable release, unless impracticable under the circumstances. The notice of the reportable release shall include the following to the extent known at the time of the notice and as long as no delay in responding to the emergency results:
1. The specific location of the release.
2. The chemical name or identity of substances released and a description of the container or vessel from which the release occurred.
3. An estimate of the quantity of substances which were released into the environment.
4. The time and duration of the release.
5. The medium or media into which the release occurred.
6. Any known or anticipated acute or chronic health risks associated with the release and, where appropriate, advice regarding medical attention necessary for exposed individuals.
7. Proper precautions to take as a result of the release, including evacuation and other proposed response actions.
8. The name and telephone number of the person or persons to be contacted for further information.

C. Within thirty days after a reportable release, the owner or operator of a facility where a release occurred requiring notification pursuant to this section shall submit to the Committee and to the Commission a written follow-up emergency notice, in accordance with section 304 of Title III, stating and updating the information originally provided pursuant to subsection A of this section and including the following additional information:
1. Actions taken to respond to and contain the release.
2. Any known or anticipated acute or chronic health risks associated with the release.
3. If appropriate, advice regarding medical attention necessary for exposed individuals.
4. Measures which have been or will be taken at the facility to avoid a reoccurrence of similar releases.

D. After any additional information becomes known, the owner or operator shall update the notice in writing within seven calendar days.


SECTION 1.11 LISTS OF HAZARDOUS CHEMICALS; MATERIAL SAFETY DATA SHEETS

A. For the purposes of this Chapter only, the Tribe references the standards set forth in 29 CFR 1910.1200 [Hazard Communication] regarding hazardous chemicals and Material Data Safety Sheets ("MSDS"), derived from the Occupational Health and Safety Act of 1970 (P.L. 91-593; 84 Stat. 1590).

B. A person who owns or operates a facility which is subject to emergency planning under this Chapter, shall submit to the Committee, the Commission, and the fire department with jurisdiction over the facility a MSDS for each chemical, or a list of hazardous chemicals stored, handled, or processed at the facility pursuant to 311 of Title III and regulations establishing minimum threshold levels adopted under that Act, currently found at 40 CFR 370.

C. If a list of hazardous chemicals is submitted under this section it shall include:
1. Information prescribed by 311 of Title III.
2. The chemical abstract service registry number applicable to each such chemical and substance, if available.
3. An indication of whether the owner elects to withhold information about the hazardous chemical or extremely hazardous substance from disclosure as a trade secret.

D. On request of the Committee, the Commission, or the fire department with jurisdiction over the facility, an owner or operator of a facility who has submitted a list pursuant to this section shall also submit the MSDS for any chemical on the list to the requesting agency. On request by any person, the Committee may make available a MSDS or transmit the request to the Commission which shall make the MSDS available, subject to the trade secret provisions and regulations adopted under Title III. If the Committee or Commission does not have the requested MSDS, the Committee or Commission shall request the MSDS from the facility owner or operator. The facility owner or operator shall make the MSDS available within thirty days after receiving the request to the Committee or Commission and the Committee or Commission shall make the MSDS available to the requesting person subject to the trade secret provisions and regulations adopted under Title III.

E. Within three months after discovery by an owner or operator of a facility of significant new information concerning an aspect of a hazardous chemical for which a list or MSDS was submitted, or within three months of after a facility obtains a new hazardous chemical subject to the reporting requirements of this section, the owner or operator shall update and submit a revised list or MSDS to the Committee, the Commission and the fire department with jurisdiction over the facility.


SECTION 1.12 EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORM

A. A person who owns or operates a facility which is required to provide a MSDS or chemical listing under Section 1.11 shall submit to the Committee, the Commission, and the fire department with jurisdiction over the facility, an emergency and hazardous chemical inventory form prepared by the commission and in substantial conformance with that developed by EPA pursuant to 312 of Title III as well as comply with 312 of Title III and regulations adopted under that Act, currently found at 40 CFR 370.40.

B. The inventory form shall be submitted on or before March 1 of each year, and shall contain data on hazardous chemicals present at the facility during the preceding calendar year above minimum thresholds established in regulations under 312 of Title III. The owner or operator shall submit a "tier II form."

C. The tier II inventory form shall contain the following information:
1. The chemical name or the common name of the chemical as provided on the material safety data sheet and the CAS number.
2. An estimate, in ranges, of the maximum amount of the hazardous chemical present at the facility at any time during the preceding year.
3. An estimate, in ranges, of the average daily amount of the hazardous chemical present at the facility during the previous year.
4. A brief description of the manner of storage of hazardous chemical.
5. The location of the hazardous chemical at the facility.
6. An indication of whether the owner elects to withhold location information or other information about a specific hazardous chemical from disclosure to the public as a trade secret.

D. An owner or operator of a facility subject to this section shall submit the information required by this section on the inventory form provided by the Administrator of the United States Environmental Protection Agency unless the Commission establishes its own form which prescribes identical content as prescribed by 40 CFR 370.40.

E. For purposes of this section, Tier II forms are the forms established under 40 CFR 370.


SECTION 1.13 TOXIC CHEMICAL RELEASE FORMS; DEFINITIONS

A. For purposes of this section:
1. "Administrator" means the Administrator of the United States Environmental Protection Agency.
2. "Manufacture" means to produce, prepare, import or compound a toxic chemical.
3. "Process" means the preparation of a toxic chemical after its manufacture for distribution in commerce either:

(1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance, or
(2) As part of an article containing the toxic chemical. Process also applies to the processing of a toxic chemical contained in a mixture or trade name product.

B. In order to implement 313 of Title III the owner or operator of a facility subject to the requirements of this section and 313 of Title III and regulations adopted under that Act shall complete a toxic chemical release form as supplied by the Administrator, pursuant to 313 of Title III, or as supplied by the Commission, for each toxic chemical listed by the Administrator pursuant to 313 of Title III that was manufactured, processed or otherwise used in quantities exceeding the toxic chemical threshold quantity as established in 313 of Title III and regulations promulgated under that Act during the preceding calendar year at that facility. The regulations are currently found at 40 CFR 372. The form shall be submitted to the Administrator and to the Commission on or before July 1 of each year and shall contain data reflecting releases during the preceding calendar year.

C. The release forms required under this section are intended to provide information to the Tribe and to the public, including citizens of communities surrounding facilities covered by this section. The release form shall be available consistent with the trade secret provisions of Title III to inform persons about releases of toxic chemicals to the environment and to assist Tribal agencies in reducing chemical releases.



SECTION 1.14 INSPECTION BY TRIBAL FIRE AND RESCUE OR TRIBAL SAFETY OFFICER

A. For the purposes of this Chapter, upon reasonable notice, Tribal Fire and Rescue or the Tribal Safety Officer may enter and inspect facilities in order to determine compliance with this chapter and for gathering information on hazardous chemicals for the purposes of emergency planning. Facilities over which Tribal Fire and Rescue has jurisdiction shall allow on-site inspection and shall provide to the department specific location information on hazardous chemicals at the facility.

B. Tribal Fire and Rescue, and any other authorized officer, may execute a search warrant issued by the Tribal Court in matters arising under this Chapter. Such warrant shall issue with or without a showing of probable cause that an offense has been or is being committed. If issued without probable cause, the applicant Tribal Fire and Rescue must show that the inspection is a part of a neutral scheme of inspection and review pursuant to this ordinance.

C. The Tribal Court of the White Mountain Apache Tribe has jurisdiction upon the filing of a verified complaint by the Tribal Fire and Rescue to issue a warrant for the inspection of a facility subject to this Chapter. If necessary, the warrant shall be executed with the assistance of the White Mountain Apache Tribal Police.

D. At the time of such inspection, the manager or the manager's designee shall, upon inquiry, advise Tribal Fire and Rescue of the existence and location of any substance whose character is unknown, but which is suspected of being subject to regulation under this ordinance. Tribal Fire and Rescue shall be allowed access to such substance and, if it is subject to such regulation, Tribal Fire and Rescue may assist the inspected party to undertake proper storage and handling, or disposal. Tribal Fire and Rescue shall not, however, be responsible for such disposal, and that responsibility shall remain at all times with the facility and its manager(s).


SECTION 1.15 VIOLATION; PENALTIES AND INJUNCTIVE RELIEF

A. Civil penalties. Any person, excluding tribal entities or tribal corporations, who fails to comply with the provisions of this ordinance shall be subject to civil penalties of up to $25,000 per day for each day during which the violation continues. In the case of a second or subsequent violation, any such person may be subject to civil penalties of up to $75,000 for each day the violation continues.

B. Criminal penalties. Any person subject to the criminal jurisdiction of the White Mountain Apache Tribe who knowingly and willfully fails to comply with the provisions of this ordinance shall, upon conviction, be fined not more than $5,000 or imprisoned for not more than one (1) year, or both for each violation.

C. Injunctive relief. Upon proper application to the Tribal Court through the Tribal Attorney's Office, an injunction may be issued to compel action or to prohibit action in order to achieve compliance with this ordinance.


SECTION 1.16 IMMINENT DANGERS

A. The Tribal Court of the White Mountain Apache Tribe has jurisdiction upon the filing of a verified complaint by the Commission through the Tribal Attorney's Office to restrain any hazardous materials, conditions, practices, or transportation in any place within the exterior boundaries of the Fort Apache Indian Reservation which could reasonably be expected to cause death or serious physical harm. Such authority may be immediately utilized where it does not reasonably appear that the imminence of such danger cannot be eliminated through other lawful available means. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct or remove the imminent danger and may prohibit the presence of any individual in locations or under conditions where such imminent danger exists; except, however, that individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations or where a cessation of operations is necessary to permit such to be accomplished in a safe and orderly manner shall not be so restrained.

B. Upon filing of any such complaint the Tribal Court of the White Mountain Apache Tribe has jurisdiction to grant such injunctive relief or temporary restraining order pending final order pursuant to this Chapter. The proceeding shall be as provided by the White Mountain Apache Rules of Civil Procedure.

C. Whenever and as soon as the Commission or its authorized representative concludes the conditions or practices described in subsection A exist in any place within the exterior boundaries of the Fort Apache Indian Reservation, it shall inform the general public or specific population affected of the relief being requested.


SECTION 1.17 NOT A CONSENT TO BE SUED OR WAIVER OF SOVEREIGN IMMUNITY

The establishment of the Commission and the Committee and the authority granted to it by this Chapter shall not constitute consent to be sued nor a waiver of the sovereign immunity of the White Mountain Apache Tribe, its agents, or representatives in any manner whatsoever.


SECTION 1.18 SEVERABILITY

If any provision of this Chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are severable.



CHAPTER TWO

TRIBAL SOLID WASTE PERMITTING PROGRAM



[Historical Note: Chapter Two is derived from Ordinance No. 202 enacted September 27, 1995]


SECTION 2.1 AUTHORITY

A. This Chapter, "White Mountain Apache Tribal Solid Waste Ordinance" shall be governed by the Constitution of the White Mountain Apache Tribe of the Fort Apache Indian Reservation and shall extend to all persons and subjects, to all lands and other property including natural resources, and to all waters and air space within the exterior boundaries of the Fort Apache Indian Reservation ("Reservation"), including any lands which may be later added to the Reservation by any law. White Mountain Apache tribal authority shall extend outside the boundaries of the Reservation to any persons, subjects, or real property which are, or may hereafter be, included within the jurisdiction of the Tribe under any law of the United States. The purpose of this ordinance is to regulate the disposal of solid waste on the Reservation in order to provide for the health, safety, and welfare of the Reservation environment and its populace, including temporary visitors and persons who may pass through the reservation.

B. Any person who violates any provision of this Chapter or enforceable regulation adopted pursuant to this Chapter shall be prosecuted under tribal law pursuant to the authority of the Tribe as set forth in the Constitution and such other laws, ordinances and authorities as have or may be adopted by the White Mountain Apache Tribe of the Fort Apache Indian Reservation. The Tribal Judiciary shall be vested with all judicial powers of the Tribe, including the power to decide cases in which any person, as defined in Article II, Section 2.2 of this Chapter, is accused by the Tribal Permitting Authority of committing an offense against the laws of the Tribe. However, certain determinations regarding compliance with this Chapter may be initially made by the Tribal Permitting Authority as set forth in this Article. The powers granted to the judiciary by this Section shall include judicial powers of inherent sovereign authority or other powers which are or may later be granted or delegated by the Federal Government to the Tribe.


SECTION 2.2 SCOPE AND DEFINITIONS

A. Scope.

(1) No TSWLF shall be constructed or operated at any location which is within the jurisdiction, or hereafter comes within the jurisdiction, of the White Mountain Apache Tribe except as it is in compliance with this Chapter. The TPA may impose more stringent requirements or standards than may be minimally required or authorized by this Chapter.

B. Definitions.
(1) The definitions in Article II apply to all subparts of this Article. For purposes of this Article:

(a) "Permit" or "prior approval and conditions" means any authorization, license, or equivalent control document issued under the authority of this Chapter regulating the location, operation, design, ground-water monitoring, corrective action, closure, post-closure care, and financial assurance of tribal solid waste landfills.
(b) "Permit documents" means permit applications, draft and final TSWLF permits, or other documents that include applicable design and management conditions in accordance with Article II of this Chapter and the technical and administrative information used to explain the basis of the permit conditions.
(c) "Regional Administrator" means the Regional Administrator from Region 9 of the U.S. Environmental Protection Agency ("EPA").
(d) "Regulations" means those provisions duly adopted or approved by the Tribal Council to implement the Tribal Solid Waste Landfill permit program, to undertake compliance monitoring activities, to initiate and prosecute enforcement actions in the Tribal Court and to undertake such other actions or activities as are authorized by this Chapter. Any such regulation adopted shall not contradict or otherwise be inconsistent with the provisions of this Chapter.
(e) "Reservation" means the Fort Apache Indian Reservation of the White Mountain Apache Tribe.
(f) "Tribe" means the White Mountain Apache Tribe of the Fort Apache Indian Reservation.
(g) "Tribal Council of the White Mountain Apache Tribe" or "Tribal Council" means the recognized governing body of the White Mountain Apache Tribe of the Fort Apache Indian Reservation.
(h) "Tribal Permitting Authority" or "TPA" means the person or entity authorized by the Tribal Council of the White Mountain Apache Tribe of the Fort Apache Indian Reservation to implement the Tribal Solid Waste Landfill permit program, to undertake compliance monitoring activities, to initiate court actions and to undertake other actions as authorized by this Chapter.
(i) "Tribal Solid Waste Landfill" unit or "TSWLF" means tribal solid waste landfill as defined in Article II Section 2.2 of this Chapter.
(j) "Tribal program" or "tribal permit program" means all the authorities, activities, and procedures that comprise the Tribe's system of prior approval and conditions for regulating the location, operation, design, ground-water monitoring, corrective action, closure, post-closure and financial assurance of tribal solid waste landfills.

SECTION 2.3 RESTRICTION ON CONSTRUCTION

A. Until and unless this Chapter is amended, only a branch of the Tribe may engage in the management and operation of a TSWLF.


SECTION 2.4 AUTHORITY OF TRIBAL PERMITTING AUTHORITY TO PROMULGATE REGULATIONS

A. The TPA may promulgate such regulations as are necessary to implement the requirements of this Chapter. Such regulations shall have the effect of tribal law upon approval by the Tribal Council in the same manner as ordinances are approved pursuant to Article XV of the Constitution of the White Mountain Apache Tribe. Any such regulation adopted shall not contradict or otherwise be inconsistent with the provisions of this Chapter.


SECTION 2.5 [RESERVED]


SECTION 2.6 PERMITTING REQUIREMENTS

A. No TSWLF shall be constructed or operated at any location which is within the jurisdiction, or hereafter comes within the jurisdiction, of the White Mountain Apache Tribe except as it is in compliance with this Chapter. The TPA may impose more stringent requirements or standards than may be minimally required or authorized as in its judgment may be necessary to carry out the provisions of this chapter. Compliance with permitting requirements means that all facilities must meet the requirements contained in this Article.
(1) All TSWLF permit documents for permit determinations shall be made available for public review and comment except those which are claimed and verified by the TPA as being those which would be subject to protection under federal Freedom of Information Act, 5 U.S.C. 552 and the Privacy Act, 5 U.S.C. 552a or other applicable law. Challenges, if any, to a determination that such information is subject to this or other protections shall be heard in the White Mountain Apache Tribal Court.
(2) All final permit determinations on TSWLF permit applications shall be made known to the public. Such determinations shall be available for review at the office of the TPA. Notice of such availability shall be published or otherwise publicly acknowledged by the TPA.

B. Public comments on permit determinations shall be considered. A 30 day written comment period may be provided for public review of proposed operating permits. Only written comments clearly identifying the concerns or issues will be considered by the office of the TPA. Any such comments shall be provided in letter form and must clearly identify the commentor. The TPA may respond in writing to appropriately submitted comments within 30 days of the expiration of the comment period and such responses and summary of whatever comments are actually responded to shall be available for public review at the offices of the TPA. Public hearings shall be provided for by the TPA prior to final approval of a permit. Notice of each hearing shall be well publicized and shall also be mailed to persons who may have a particular interest in the solid waste permitting decision. A list of such persons shall be compiled and maintained. Such persons shall also be made aware of the availability of materials including policy, program, and technical information regarding the permitting decision. Notice of such public hearing shall be publicized no less than 30 days prior to the date of the hearing. The notice shall identify the matters to be discussed at the hearing and shall include or be accompanied by a discussion of the TPA's tentative determination on major issues and procedures for obtaining further information. Reports, documents and data relevant to the discussion at the public hearing shall be available to the public at least 30 days before the hearing.
The hearing(s) shall be held at times and places which, to the maximum extent feasible, facilitate attendance by the public. In cases of actions with broad interest, holding more than one hearing should be considered. The TPA shall schedule witnesses in advance, when necessary, to ensure maximum participation and allotment of adequate time for all speakers. Additional time shall be reserved for unscheduled testimony.
The TPA shall initiate the hearing by advising the audience of the issues involved in the decision to be made, the considerations the department will take into account, the department's tentative determinations (if any) and the information which is particularly solicited from the public. The TPA shall prepare a complete record of the hearing proceedings and make it available at no cost to anyone who requests it. Such record may consist of a transcript, a recording or other complete record. A copy of the record shall be available for public review.

C. The TPA has the authority to collect all information necessary to issue permits that are adequate to ensure compliance with Article II of this Chapter. The TPA may promulgate such regulations as are necessary to further implement or clarify this Section. Such regulations, if any, shall be promulgated pursuant to Section 2.4 of this Article.

D. (1) Prior to construction and operation a TSWLF must first obtain a permit through the tribal permit program incorporating the conditions identified in Section 2.6(d)(3) of this Article. Any such permit issued must be drafted or approved by the TPA and will not become effective until the expiration of any applicable comment period and final approval by the Tribal Council.
(2) All existing TSWLFs must obtain a permit incorporating the conditions identified in Section 2.6(d)(3) of this Article. Any such permit issued must be drafted or approved by the TPA and will not become effective until the expiration of any applicable comment period and final approval by the Tribal Council. If no permit is issued for an existing TSWLF, the TPA shall set forth a schedule providing for the final closure of the existing TSWLF mandating closure of the facility within a period of 6 months.
(3) The TPA shall, at a minimum, incorporate into every permit authorizing the construction and/or operation of any TSWLF requirements adequate to ensure compliance with Article II of this Chapter. The requirements include:

(i) General standards which achieve compliance with Article II Subpart A.
(ii) Location restrictions for TSWLF which achieve compliance with Article II Subpart B.
(iii) Operating criteria for TSWLF which achieve compliance with Article II Subpart C.
(iv) Design criteria for TSWLF which achieve compliance with Article II Subpart D.
(v) Ground-water monitoring and corrective action standards for TSWLF which achieve compliance with Article II Subpart E.
(vi) Closure and post closure care standards for TSWLF which achieve compliance with Article II Subpart F.
(vii) Financial assurance standards for TSWLF which achieve compliance with Article II Subpart G.
(viii) Acknowledgment that the TPA may conduct any inspections, perform any tests (at the facility or on materials or samples gathered at the facility), require responses to requests for information, or take any other action reasonably calculated to assert the TPA's authority to carry out its duties pursuant to Section 2.7 of this Article and the rest of this Chapter.

SECTION 2.7 COMPLIANCE MONITORING AUTHORITY

A. The TPA is empowered to:
(1) obtain any and all information, including records and reports, from an owner or operator of a TSWLF necessary to determine whether the owner/operator is in compliance with the tribal permitting program requirements;

(2) conduct monitoring, testing, or inspection calculated to ensure that owners/operators are in compliance with the tribal permitting program requirements. The owner or operator shall maintain such operating and other records as the TPA may reasonably require pursuant to either a validly issued permit or as may be directed by a validly adopted regulation.
(3) enter on or into any site or premises subject to the permit program or in which records relevant to the operation of regulated facilities or activities are kept. In the event that entry is denied, the TPA or an authorized representative(s) may execute a search warrant issued by the Tribal Court in matters arising under this Chapter. Such warrant shall issue with or without a showing of probable cause that a violation has been or is being committed. If issued without probable cause, the applicant TPA must show that the inspection is a part of a neutral scheme of inspection and review pursuant to this Chapter.

B. Any information lawfully gathered by the TPA as a result of these or other lawful activities under this or other applicable laws may be used in enforcement proceedings brought by the TPA. However, information which may be proprietary or otherwise protected information of the White Mountain Apache Tribe may only be admitted to the Tribal Court in camera and shall not otherwise be discoverable or releasable for public purposes. However, any information gathered which is or would be inadmissible in Tribal Court pursuant to tribal or other applicable rules of evidence or law shall not be admissible in such enforcement proceedings.
In order to ensure that the TPA's compliance monitoring activities are adequate to ensure compliance with the permit program, the TPA may:
(1) verify the accuracy of information submitted by owners or operators of TSWLFs by accompanying any permittee to take samples and to review the results of the testing of such samples either independently or with the permittee. The TPA is authorized to conduct independent inspections, testing and monitoring, at the discretion of the TPA, to ensure that all conditions of the permit are being complied with.
(2) verify the adequacy of methods (including sampling) used by owners or operators in developing information submitted to the TPA. To this end, the TPA is authorized to review the methods used by the permittee either independently, or through the assistance of retained third parties who, in the TPA's judgment, possess adequate expertise to evaluate such methods.
(3) obtain evidence admissible in an enforcement proceeding as set forth in subsection b, above.
(4) receive and ensure proper consideration of information submitted by the public. To this end, the TPA shall accept written comments or information submitted by the public addressing the compliance of persons, or lack thereof, with the provisions of this Chapter. The TPA shall consider such information within a reasonable period of time. The TPA shall act upon such information within its discretion and may provide an oral or written response to the commentor. It shall not be required that a public commentor provide his or her identity for purposes of this subsection. The TPA may promulgate such regulations pursuant to Section 2.4 of this Article as may be necessary to further implement this subsection.


SECTION 2.8 ENFORCEMENT AUTHORITY

The TPA is authorized, to the extent necessary, to employ independent counsel to prosecute enforcement and other actions addressed in this Section. Where no actual or apparent conflict of interest is present, enforcement actions may be referred to the Office of the Tribal Attorney. The Tribal Court, in an appropriately initiated action by the TPA under the Tribal Judicial Code, and the TPA are empowered and authorized to and may impose the following remedies and mandates for violation(s) of the tribal permitting program requirements and this Chapter generally:

A. Upon TPA's adequately showing to the Tribal Court that any particular activity subject to regulation by this Chapter poses a risk of, or may currently endanger or cause damage to human health or the environment, the Tribal Court may issue an order to restrain immediately and effectively any person from engaging in the complained of activity. Actions brought under this subsection shall be conducted in accordance with the provisions of the White Mountain Apache Tribal Court Formal Rules of Civil Procedure;

B. Upon TPA's adequately showing to the Tribal Court that any person is engaging in, threatening to engage in, or continuing any activity which violates the provisions of this Chapter, Tribal Council approved regulations adopted thereunder, TPA or Tribal Court order, or permit issued pursuant to the Tribal permit program, the Tribal Court may issue an injunction to enjoin such activity. Actions brought under this subsection shall be conducted in accordance with the provisions of the White Mountain Apache Tribal Court Formal Rules of Civil Procedure;

C. The TPA may sue in the White Mountain Apache Tribal Court to recover civil penalties for violations of the provisions of this Chapter, Tribal Council approved regulations adopted thereunder, order, or permit issued pursuant to the Tribal permit program. Such penalties shall be in the amount of up to one-thousand dollars ($1,000) per violation per day, to a maximum of ten-thousand dollars ($10,000) per day. Further, costs may be awarded in accordance with the provisions of the Tribal Tort Claims Act Section 3.13 as it exists or is hereafter amended. Actions brought under this subsection shall be conducted in accordance with the provisions of the White Mountain Apache Tribal Court Formal Rules of Civil Procedure;

D. The TPA may issue compliance orders requiring any person to undertake certain activities to come into compliance with the law or conditions of its permit; it may issue requests for information to which any person must respond regarding its operations or otherwise having to do with ensuring that such person is complying with the law or conditions of its permit; it may issue a compliance schedule to any person where the TPA determines that any person is not in compliance with the law or conditions of a permit.

E. A person's failure to file a response to a request for information within 15 working days of the request shall constitute a civil violation of this Chapter. A person's failure to meet the terms of a compliance order or to meet the terms of a compliance schedule shall also constitute a civil violation of this Chapter.

F. Except for an arm or branch of the White Mountain Apache Tribe or any person acting within the official and lawful scope of their duties, it shall be a criminal offense for any person to intentionally or wilfully violate the provisions of this Chapter. Persons are conclusively presumed to be aware of the requirements of this Chapter upon its adopted date. It shall not be a defense that a person was acting at the direction of a superior or supervisor. Such offenses shall be punishable to the maximum extent of the law, restricted only by the limitations set forth in the Indian Civil Rights Act of 1968, 25 U.S.C. 1302. Such matters shall be referred to the Office of the Tribal Prosecutor for consideration of filing such criminal charges. If the White Mountain Apache Tribe lacks criminal jurisdiction over the person(s) for purposes of this Chapter, the matter may be civilly prosecuted and/or referred to the appropriate federal agency or authority for criminal and/or civil prosecution.

G. No person shall dump or otherwise dispose of any household solid waste on any lands or at any place within the jurisdiction of the White Mountain Apache Tribe other than at A TSWLF unit permitted by the TPA, or otherwise in a manner not in accordance with such permits or regulations that the TPA may issue or promulgate in order to serve the purposes and intent of this Chapter. No person shall burn household wastes. No person shall dump or otherwise dispose of any other waste, including construction debris, at any place within the jurisdiction of the White Mountain Apache Tribe other than at a site, location, or disposal unit authorized by the Tribal Council or other appropriate tribal authority.
Any person who violates these conditions or regulations shall be in violation of this Chapter and shall be subject to all enforcement actions and other provisions of this Chapter. This provision is applicable regardless of whether the activity occurs on assigned or unassigned land within the meaning of the White Mountain Apache Land Code, whether the land is leased or occupied by a tribal or non-tribal entity, and regardless of the nature of any other manner in which such lands may be held or be subject to a legal interest. Additionally, such person may be required to pay for the clean-up and other impacts (including groundwater, soil or other damage or contamination) of the illegally deposited waste. It shall be within the TPA's discretion as to whether such waste shall be removed and the area remediated by tribal or non-tribal entities not related to such person, or whether such person shall be authorized to conduct such clean-up and remediation directly. The TPA shall consider authorizing such person to complete clean-up and remediation within fourteen (14) days, or within such additional time as the TPA determines is appropriate, after the person is notified in writing of the unlawful dumping. Additional costs may be recovered in accordance with the provisions of the Tribal Tort Claims Act Section 3.13 as it exists or is hereafter amended.

H. The TPA is authorized to issue written orders and take such other action in accordance with subsection (c) of this section compelling the owner, assignee, or occupant of buildings, grounds, or lots or assigned lands to remove rubbish, trash, weeds, wrecked auto bodies or other accumulations of filth or debris which constitutes a hazard to the public health and safety or welfare from buildings, grounds, lots, or other places which such persons may own or control. Notice shall be provided to such person not less than thirty days before the day set for compliance. The notice shall either be personally served or mailed to the owner, assignee or person in control of the site at his or her last known address. If such person does not comply with an order validly issued by the TPA, the TPA may make arrangements for the removal of such filth or debris and may assess the person the costs of removal and proper disposal of such material. If necessary, the TPA may bring an action in Tribal Court to recover the costs and may recover such other costs as are provided for in accordance with the provisions of the Tribal Tort Claims Act Section 3.13 as it exists or is hereafter amended.



SECTION 2.9 INTERVENTION IN CIVIL PROCEEDINGS

A. The TPA shall:
(1) provide notice and opportunity for public involvement in all proposed settlements of civil enforcement actions (except where immediate action is necessary to adequately protect human health and the environment);
(2) investigate and provide responses to citizen complaints about violations as set forth in section 2.7(c)(4) of this Article; and
(3) will not oppose citizen intervention when permissive intervention is allowed by statute, rule, or regulation.


SECTION 2.10 SEVERABILITY

If any provision of this Chapter or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are severable.


This page is maintained by:
Marilyn K. Nicely, American Indian Law Subject Specialist: nicely@www.law.ou.edu
Date Last Modified: 24 November, 1997
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