Advisories & Insights

Due Diligence & Environmental Compliance Issues for Tribal Energy Projects: Environmental Compliance Issues for Hazardous Waste

January, 2007

A critical element of environmental due diligence is the assessment of compliance with hazardous waste regulations, particularly in Indian country. Industrial activities on Indian lands within Washington create a potentially significant hazardous waste problem; conversely, Indian reservations may be considered as potential locations for hazardous waste-generating activities or disposal sites, in Washington and elsewhere, because they often are remote from heavily populated areas.[1] For measuring the viability of a proposed energy project to be developed in Indian country, with its complex regulatory and jurisdictional issues, that assessment should include an analysis of what regulatory framework applies to the project, who will be responsible for liabilities arising from pat noncompliance, and who will be responsible for future compliance with hazardous waste regulations, during the life of the project and after decommissioning. This may be an unfamiliar exercise for project proponents, even sophisticated ones, who are unfamiliar with Indian law.

Overview of Regulatory Authority

The first step in assessing compliance with environmental regulations in Indian country requires determining what regulations apply. As Congress understands the term, "Indian Country" includes both formal and informal Reservations, dependent Indian communities, and Indian allotments that may be restricted or held in trust by the U.S. Government.

As a result of allotment and diminishment of reservation lands, Indian Country is characterized by a checkerboard approach to land ownership. Consequently, it is often difficult to make jurisdictional predictions regarding the regulatory authority of Tribes, due primarily to the issue of Tribal land ownership in Indian Country.

Determining a Tribe's regulatory authority requires an analysis of several factors, including the sources and limitations of Tribal power and whether federal statutory delegations, land holding, or demographic patterns suggest federal or state primacy with respect to regulatory authority.

Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate ... the activities of non-members who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements .... A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.[2]

The environmental concerns of Indian Tribes typically extend beyond the boundaries of their Reservations. Such concerns may be the result of environmental problems occurring off-Reservation that pose dangers on-Reservation or may be the consequence of environmental hazards that begin within the Reservation's territorial limits. Whether on- or off-Reservation, Indian Tribes are increasingly playing a central role in decisions related to their environment to ensure protection of their natural resources interests and rights.

Important sources of authority by which Tribes may assert their on- and off-Reservation natural resource interests are: Tribes' inherent authority to exercise their sovereign powers; treaties with the United States as well as federal statutes and executive orders which specifically reserve the rights of Indian Tribes to their lands, waters, and natural resources; and federal statutory delegations of authority granted to Tribes through federal environmental laws that include provisions permitting Tribal governments to assume regulatory responsibility for program implementation within the exterior boundaries of their Reservations.

In addition to specific statutory authority provided by federal environmental laws that permit the involvement of Indian Tribes in environmental management programs, Tribal collaboration with federal agencies is an important avenue by which Indian Tribes may become involved in environmental management and decision making.

The authority to delegate specific enforcement and regulatory authority to Tribes under many federal environmental statutes lies most often with the U.S. Environmental Protection Agency (EPA). The EPA has developed several national and regional "Indian policies" designed to promote the federal government's general policy respecting Tribal self-determination, which recognizes that Indians should play a central role in decisions affecting the future of Reservation life.[3] EPA's Indian Policy includes two primary principles: implementation of federal environmental statutes in Indian Country should be done by EPA or by Tribes rather than states; and where authorized, EPA will cooperate with and assist Tribes in the development and implementation of Tribal programs that arise under federal environmental statutes.

Given EPA's enhanced Tribal responsibilities in the Pacific Northwest resulting from the presence of a significant number of Indian Tribes, EPA Region 10 similarly developed and abides by a Tribal Strategy it finalized in 1999[4] that outlines its commitment to and responsibility for environmental protection within Indian Country as well as Tribal resources located outside of it. These resources include usual and protected hunting and fishing areas protected by treaty and subsistence areas subject to Federal and State protection. Fundamental to this approach is EPA's pledge to support Tribal self-government and management of environmental programs by assisting Tribal governments in building the capacity they need to effectively determine and regulate the future quality of their Reservation Environment.

Nationally, EPA has authorized Tribes to manage environmental programs under several federal laws that provide specific authority for Tribal management, including the Clean Water Act (CWA)[5] and the Clean Air Act (CAA).[6] Where Congress has not provided specifically for Tribal assumption of authority, EPA has determined that the decision to allow Tribal management of environmental programs is within the Agency's discretion. Examples of EPA's exercise of its discretionary authority include the Resource Conservation and Recovery Act (RCRA)[7] and the Toxic Substance Control Act (TSCA).[8] In addition, three other federal environmental laws provide for a limited Tribal role similar to that provided to states: the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA);[9] the Emergency Response and Community Right to Know Act;[10] and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[11]

Tribes that wish to build the capacity necessary to enable them to participate effectively in the management of environmental programs may request "Treatment as a State" (TAS) eligibility from the EPA. A TAS designation requires EPA to treat Indian Tribes that meet certain statutory and regulatory requirements at states under specific environmental statutes. Examples of statutes that embrace this option include the CAA and the CWA. To qualify for TAS designation, a Tribe must meet the following criteria: the Tribe is recognized by the Secretary of Interior; the Tribe's government body is carrying out substantial governmental duties and functions; and the Tribe has the jurisdiction and capability to carry out the proposed activities.

Tribal government authority to participate in environmental management decisions related to the Reservation Environment stems not only from treaties and federal environmental statutes, but from Tribes' adoption of their own environmental regulations. As with federal regulations, regulated business entities must become familiar with and thoroughly understand applicable Tribal codes, ordinances, and regulations. Additionally, businesses must be cognizant of the fact that Tribes enjoy general immunity from suit without their consent and can generally require that suits brought against them be filed in Tribal courts. Environmental regulatory jurisdiction within a reservation is not dependent solely on the ownership status of the land in question.[12]

Determining whether Tribal or federal environmental regulations apply to lands within the exterior boundaries of a Reservation or whether the Tribes has jurisdiction over issues of environmental management requires careful analysis of both the source of Tribal power and of the lands and persons against whom the power is asserted.[13] In assessing the viability of a proposed energy project in Indian country, the cost of complying with potentially overlapping federal and Tribal regulatory schemes.

It is only after determining what regulations apply to a particular proposed energy project that one may determine whether prior operations at the site were in compliance with those regulations, and determine how to assure compliance in the future, during the life of the proposed project.

Compliance with Hazardous Waste Regulations

A due diligence assessment is an instrument to measure risk, usually performed as part of the decision-making process for a transaction: the acquisition of real property or a business, or the investment in or development of a project.[14] In the context of hazardous waste, environmental due diligence examines such issues as whether a former owner or operator complied with hazardous waste regulations, and generated or stored hazardous materials or waste during the course of operations; whether releases of hazardous substances occurred; the risk of agency enforcement or third-party action as a result of releases of hazardous substances; and the cost of potential cleanup.

Under CERCLA, a prospective purchaser of property may minimize risk, and protect himself or herself from future CERCLA liability arising from past operations by following EPA's "All Appropriate Inquiries Rule."

CERCLA All Appropriate Inquiry Rule

Under the Small Business Liability Relief and Revitalization Act of 2002 (the "Brownfields Amendments"), a purchaser of contaminated land can qualify for liability protection under CERCLA by following the All Appropriate Inquiries Rule ("AAI Rule").[15] Without liability protection, owners of property are potentially responsible for contamination found at the property, regardless of whether or not they caused the contamination. A prospective purchaser can qualify for protection from CERCLA liability by establishing that it is (1) an "innocent landowner" within the meaning of CERCLA §101(35); (2) a contiguous owner of contaminated land within the meaning of CERCLA l§107(q); or (3) a "bona fide prospective purchaser" within the meaning of CERCLA §107(r)(1) and §101(40). The criteria to qualify for the liability protections under each of these provisions includes a requirement that the property owner engage in "all appropriate inquiry" of environmental conditions on the land prior to purchasing the property. The AAI Rule is used, together with other criteria, in order to determine whether a person is protected from CERCLA liability as either an innocent landowner, contiguous landowner or bona fide purchaser. The AAI Rule became effective November 1, 2006.

Under the AAI Rule, environmental due diligence must include the results of an inquiry conducted by a qualified environmental professional, defined as "a person who possesses sufficient specific education, training and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases . . . on, at, in, or to a property, sufficient to meet the objectives and performance factors."

The AAI Rule contemplates interviews with a broader array of individuals than required under prior standards. For example, the Rule expects the environmental professional to interview current and past facility managers with relevant knowledge of the uses and physical characteristics of the property; past owners, occupants, or operators of the subject property; and employees of current and past occupants of the property. Additionally, for abandoned properties where there is evidence of potential unauthorized uses of the property or evidence of uncontrolled access to the property, the environmental professional must interview at least one neighbor. The final version of the AAI Rule does not require an interview of a government official, but such interviews are recommended.

In addition to visual inspections of property, facilities, structures and improvements, the AAI Rule requires visual inspection of adjoining properties from the property line, public rights of way, or other vantage points. Other required investigations include (1) reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records, to determine previous uses and occupancies of the real property since the property was first developed; (2) searches for recorded environmental cleanup liens against the facility that are filed under Federal, State, or local law; and (3) reviews of Federal, State, local, or Tribal government records,[16] waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records, concerning contamination at or near the facility. The environmental professional conducting the review should also consider any specialized knowledge or experience on the part of the property owner; the relationship of the purchase price to the value of the property, if the property was not contaminated; commonly known or reasonably ascertainable information about the property; and the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.

Based on his or her inquiries, the environmental professional must prepare a report which includes an opinion "as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances . . . . on, at, in, or to the subject property." The report must identify data gaps in the information that affect the ability of the professional to identify conditions indicative of releases or threatened releases of hazardous substances and include comments regarding the significance of data gaps on the opinion. Sampling and analysis may be conducted to address data gaps, but sampling is not required.

An AAI-sufficient inquiry may be difficult at times in Indian country. Property may have been used without an absent owner's knowledge or permission, or the knowledge of the Tribal regulatory authority. Illegal dump sites are an enormous problem in Indian country. An abandoned site or facility may not have been operated legally or with appropriate permits. There may be little in the way of records of operations. Where federally approved tribal regulatory programs do not now, or historically did not exist, enforcement responsibility on reservations generally has fallen to the EPA. But many within both the tribes and the federal government believe that the EPA, if only because of its own limited resources, has often neglected its managerial and enforcement responsibilities. For example, one area where this problem may have been particularly acute is the tracking of environmental monitoring data on the approximately 850 industrial facilities located on tribal lands. In the late 1990s, EPA's Office of Environmental Compliance Assistance's American Indian Lands Environmental Support Project records indicated that up to 61% of all CAA air-permitted facilities on tribal lands "appear to have never been inspected."[17]

Where due diligence has revealed the presence of hazardous substances that must be cleaned up during the course of development of an energy project, project proponents and Tribal governments may allocate responsibility for such cleanup costs contractually, at the front end. Similarly, project proponents and Tribal governments may allocate responsibility for compliance with hazardous waste regulations during operation of the energy project in the development or operating agreement for the project.

Future Compliance

In assessing costs associated with hazardous waste regulations during the life of a project or after decommissioning, one issue that may arise is the condition the site of the project may be left in at the end of a project's lifespan. How clean is clean? If a Tribe, either in its role as a project proponent, or a permitting or regulatory agency, authorizes a level of cleanup required at the time of decommissioning, is that the final determination? Or, is there a federal agency (or agencies) with jurisdiction, or management authority over land or resources impacted by the project's operations, that may require further action?

In assessing the viability of a proposed energy project to be developed in Indian country, with its complex regulatory and jurisdictional issues, that assessment should include an analysis of what regulatory framework applies to the project, who is responsible for any liabilities arising from past non-compliance, and who will be responsible for future compliance with hazardous waste regulations, during the life of the project and after decommissioning.

APPENDIX

A. Key Federal Hazardous Waste Regulations

· Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.

· Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387.

· Resource Conservation and Recovery Act of 1976; Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992K.

· Surface Mining and Reclamation Act of 1977, 30 U.S.C. §§ 1201-1328.

· Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (regulations at 40 C.F.R. §§ 766,790-792, 795-799).

· Underground Storage Tanks, 42 U.S.C. § 6991.

· Emergency Planning Community Right to Know Act, 42 U.S.C. § 11001 et seq.

· Clean Air Act, 42 U.S.C. §§ 7401-7642.

· Clean Water Act, 33 U.S.C. §§ 1251-1387.

· Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq.

B. Selected Tribal Hazardous Waste and Environmental Protection Regulations of Northwest Tribes

1. Tribal Environmental Protection Ordinances:

a. The Confederated Tribes of the Grand Ronde Community of Oregon, Environmental Protection Ordinance, Tribal Code § 651(m):

ACTIVITIES CAUSING POLLUTION. Notwithstanding any other provision of this Ordinance, no person shall discharge Pollutants in a manner which will likely result in Pollution of the Environment. This Ordinance does not apply to actions authorized by the Council or its designee during a state of emergency declared by the Council.

(1) Emergency Powers. The Council hereby authorizes the Tribal Chairperson, the Executive Officer or their designee(s) upon receipt of evidence of discharge of Pollutants into the Reservation Environment posing an imminent and substantial threat to the health, safety or welfare of Tribal members or significantly endangering livestock, wildlife, fish or other aquatic life within the reservation, to bring suit on behalf of the Tribe in Tribal Court, or any other court of competent jurisdiction, to immediately restrain any person or persons from discharging such Pollutants or to take such other action as may be lawful and necessary to enforce this ordinance.

(2) Tribal Court. The Tribal Court shall have specific authority and all other authority inherently necessary to effect the purposes of this ordinance including the following:

(a) Enjoining person(s) from engaging in any activity which will result in Pollution of the Reservation Environment;

(b) Ordering the party determined to have engaged in polluting the Reservation Environment to pay the cost of cleanup; or

(c) Ordering the party determined to have engaged in polluting the Reservation Environment to reimburse the Tribe for costs of cleanup.

b. Nisqually Tribal Code, Title 14 - Environment and Natural Resources:

14.16.09 Cease and Desist Orders

(a) If the Tribe or its authorized representative determines, with or without a hearing, that there exists a violation of any provision of this ordinance, the Tribe may issue a cease and desist order. Such order shall set forth the provision alleged to be violated, the facts alleged to constitute the violation, and the time by which acts or practices complained of must be terminated.

(b) The order shall be served in the manner provided in subsection 14.16.08.

(c) A Cease and Desist Order does not preclude the Tribe from seeking civil penalties and/ or damages.

14.16.10 Clean-up Orders

(a) The Tribe or its authorized representative may issue orders to any person to clean up any hazardous or toxic substance, pollutant, refuse or garbage which he, or his employee, or his agent has accidentally or purposely dumped, spilled, or otherwise deposited in, on or within any lands, wetlands, tidelands, or waters within the jurisdiction of the Tribe. A Cleanup Order may require that the best available technology be used to restore the polluted area as near as possible to its original condition.

(b) The order shall be served in the manner provided in subsection 14.16.08.

(c) A Cleanup Order does not preclude the Tribe from conducting its own cleanup activities, seeking civil penalties and/ or seeking damages.

c. Colville Tribal Law and Order Code, Title 4, Natural Resources and Environment, Ch. Chapter 4-16 Hazardous Substance Control[18]

4-16-1 Short Title

This Chapter shall be known as the Colville Hazardous Substances Control.

4-16-2 Declaration of Policy

(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.

4-16-3 Department's Powers and Duties

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

(1) Investigate, provide for investigating, or require potentially liable persons to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release. If there is a reasonable basis to believe that a release or threatened release of a hazardous substance may exist, the Department's authorized employees, agents, or contractors may enter upon any property and conduct investigations. The Department shall give reasonable notice before entering property unless an emergency prevents such notice. The Department may by subpoena require the attendance or testimony of witnesses and the production of documents or other information that the Department deems necessary;

(2) Conduct provide for conducting, or require potentially liable persons to conduct remedial actions including investigations under section 4-1 6-3 (a), subpart (1) to remedy releases or threatened releases of hazardous substances. In carrying out such powers, the Department's authorized employees, agents, or contractors may enter upon property. The Department shall give reasonable notice before entering property unless an emergency prevents such notice. In conducting, providing for, or requiring remedial action, the Department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action;

(3) Retain contractors and consultants to assist the Department in carrying out investigations and remedial actions;

(4) Carry out all Tribal programs authorized under the federal cleanup law, the Resource Conservation and Recovery Act 42 U. S.C. § 6901 et seq., as amended, and other federal laws;

(5) Classify substances as hazardous substances for purposes of section 4-16-12(10);

(6) Issue orders or enter into consent decrees or agreed orders that include, or issue written opinions under section 4-16-3(a), subpart (9) that may be conditioned upon, deed restrictions or other appropriate institutional controls as may be necessary to protect human health and the environment from a release or threatened release of a hazardous substance from a facility. Prior to establishing a deed restriction or other appropriate institutional control under this subsection, the Department shall notify and seek comment from the Tribal Land Use Planning Department with jurisdiction over the real property subject to such restriction;

(7) Enforce the application of permanent and effective institutional controls that are necessary for a remedial action to be protective of human health and the environment;

(8) Require holders to conduct remedial actions necessary to abate an imminent or substantial endangerment pursuant to section 4-16-12(o), subpart (3), sub-subpart (B)(iii);

(9) Provide informal advice and assistance to persons regarding the administrative and technical requirements of this Chapter. This may include site-specific advice to persons who are conducting or otherwise interested in independent remedial actions. Any such advice or assistance shall be advisory only, and shall not be binding on the Department. As a part of providing this advice and assistance for independent remedial actions, the Department may prepare written opinions regarding whether the independent remedial actions or proposals for those actions meet the substantive requirements of this Chapter or whether the Department believes further remedial action is necessary at the facility. The Department may collect, from persons requesting advice and assistance, the costs incurred by the Department in providing such advice and assistance; however, the Department shall, where appropriate, waive collection of costs in order to provide an appropriate level of technical assistance in support of public participation. The Tribe, Department, and officers, agents, attorneys, and employees of the Tribe are immune from all liability, and no cause of action of any nature may arise from any act or omission in providing, or failing to provide, informal advice and assistance; and

(10) Take any other actions necessary to carry out the provisions of this Chapter, including proposing that the Council amend this Chapter.

(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:

(1) Provide for public notice of investigative plans, clean up plans, or remedial plans and other significant actions taken under this Chapter;

(2) Require the reporting by an owner or operator of releases of hazardous substances to the environment that may be a threat to human health or the environment within ninety (90) days of discovery, including such exemptions from reporting as the Department deems appropriate, however this requirement shall not modify any existing requirements provided for under other laws

(3) Establish reasonable deadlines for initiating an investigation of a hazardous waste site after the Department receives information that the site may pose a threat to human health or the environment and other reasonable deadlines for remedying releases or threatened releases at the site; and

(4) Enforce clean-up standards set forth in section 4-16-10; and

(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.

4-16-4 Standard of Liability-Settlement

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

(1) The owner or operator of the facility;

(2) Any person who owned or operated the facility at the time of disposal or release of the hazardous substances;

(3) Any person who owned or possessed a hazardous substance and who by contract, agreement, or otherwise arranged for disposal or treatment of the hazardous substance at the facility, or arranged with a transporter for transport for disposal or treatment of the hazardous substances at the facility, or otherwise generated hazardous wastes disposed of or treated at the facility;

(4) Any Person:

(A) Who accepts or accepted any hazardous substance for transport to a disposal, treatment, or other facility selected by such person from which there is a release or a threatened release for which remedial action is required, unless such facility, at the time of disposal or treatment, could legally receive such substance; or

(B) Who accepts a hazardous substance for transport to such a facility and has reasonable grounds to believe that such a facility is not operated in accordance with Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., as amended, and programs appropriately delegated under RCRA; and

(5) Any person who both sells a hazardous substance and is responsible for written instructions for its use if:

(A) The substance is used according to the instructions; and

(B) The use constitutes a release for which remedial action is required at the 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.

(c) The following persons are not liable under this section:

(1) Any person who can establish that the release or threatened release of a hazardous substance for which the person would be otherwise responsible was caused solely by:

(A) An act of God;

(B) An act of war; or

(C) An act or omission of a third party (including but not limited to a trespasser) other than:

(i) An employee or agent of the person asserting the defense, or

(ii) Any person whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the person asserting this defense to liability.

This defense only applies where the person asserting the defense has exercised the utmost care with respect to the hazardous substance, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions;

(2) Any person who is an owner, past owner, or purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was acquired by the person, the person had no knowledge or reason to know that any hazardous substance, the release or threatened release of which has resulted in or contributed to the need for the remedial action, was released or disposed of on, in, or at the facility. This section 4-16-4(c), subpart (2) is limited as follows:

(A) To establish that a person had no reason to know, the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property, consistent with good commercial or customary practice in an effort to minimize liability. Any court interpreting this section 4- 1 6-4(c), subpart (2) shall take into account any specialized knowledge or experience on the part of the person, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection;

(B) The defense contained in this section 4-16-4(c), subpart (2) is not available to any person who had actual knowledge of the release or threatened release of a hazardous substance when the person owned the real property and who subsequently transferred ownership of the property without first disclosing such knowledge to the transferee;

(C) The defense contained in this section 4-16-4(c), subpart (2) is not available to any person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance at the facility;

(3) Any natural person who uses a hazardous substance lawfully and without negligence for any personal or domestic purpose in or near a dwelling or accessory structure when that person is:

(A) A resident of the dwelling;

(B) A person who, without compensation, assists the resident in the use of the substance; or

(C) A person who is employed by the resident but who is not an independent contractor;

(4) Any person who, for the purpose of growing food crops, applies pesticides or fertilizers without negligence and in accordance with all applicable Tribal and federal laws and regulations.

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

(1) The Department may agree to a settlement with any potentially liable person only if the Department finds that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with cleanup standards under section 4-16-10(b), subpart (4) and with any remedial orders issued by the Department. Whenever practicable and in the public interest the Department may expedite such a settlement with a person whose contribution is insignificant in amount and toxicity.

(2) A settlement agreement under this subsection shall be entered as a consent decree issued by the Tribal Court.

(3) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settlement agreement in favor of any person with whom the Department has settled under this section. Any covenant not to sue shall contain a reopener clause which requires the Tribal Court to amend the covenant not to sue if factors not known at the time of entry of the settlement agreement are discovered and present a previously unknown threat to human health or the environment.

(4) A party who has resolved its liability to the Department under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other liable parties but it reduces the total potential liability of the others to the Department by the amount of the settlement.

(5) If the Department has entered into a consent decree with an owner or operator under this section, the Department shall not enforce this Chapter against any owner or operator who is a successor in interest to the settling party unless under the terms of the consent decree the Department could enforce against the settling party, if:

(A) The successor owner or operator is liable with respect to the facility solely due to that persons ownership interest or operator status acquired as a successor in interest to the owner or operator with whom the Department has entered into a consent decree; and

(B) The stay of enforcement under this subsection does not apply if the consent decree was based on circumstances unique to the settling party that do not exist with regard to the successor in interest, such as financial hardship. Such unique circumstances shall be specified in the consent decree.

(6) Any person who is not subject to enforcement by the Department under section 4-16-4(d), subpart (5) is not liable for claims for contribution regarding matters addressed in the settlement.

(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:

(1) The settlement will yield substantial new resources to facilitate cleanup;

(2) The settlement will expedite remedial action consistent with this Chapter; and

(3) Based on available information, the Department determines that the redevelopment or reuse of the facility is not likely to contribute to the existing release or threatened release, interfere with remedial actions that may be needed at the site, or increase health risks to persons at or in the vicinity of the site.

(4) The Department does not have adequate resources to participate in all property transactions involving contaminated property. The primary purpose of this section 4-16-4(e) is to promote the cleanup and reuse of vacant or abandoned commercial or industrial contaminated property. The Department may give priority to settlements that will provide a substantial public benefit, including, but not limited to the reuse of a vacant or abandoned manufacturing or industrial facility, or the development of a facility by a Tribal entity to address an important public purpose.

(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.

4-16-5 Enforcement

(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:

(1) Up to three times the amount of any costs incurred by the Department as a result of the party's refusal to comply; and

(2) A civil penalty of up to twenty-five thousand ($25,000) dollars for each day the party refuses to comply. The treble damages and civil penalty under this subsection apply to all recovery actions filed on or after the date this Chapter is enacted and adopted by the Council.

(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.

(d) Civil actions under this section and section 4-16-6 shall be brought in Tribal Court.

4-16-6 Judicial Review

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:

(a) In a cost recovery suit under section 4-16-5(b);

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

(c) In a suit by the Department to compel investigative or remedial action. The court shall uphold the Department's action unless they were arbitrary and capricious.

4-16-7 Deposits to Hazardous Waste Account

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

(b) The following moneys shall be deposited into the hazardous waste account:

(1) The costs of remedial actions recovered under this Chapter;

(2) Penalties collected or recovered under this Chapter; and

(3) Any other money appropriated or transferred to the account by the Department. Moneys in the account may be used only to carry out the purposes of this Chapter including but not limited to the following activities:

(A) The hazardous waste cleanup program required under this Chapter;

(B) Matching funds required under any federal law;

(C) Tribal programs for the safe reduction, recycling, or disposal of hazardous wastes from households, small businesses, and agriculture;

(D) Hazardous materials emergency response training; and

(E) Water and environment health protection and monitoring programs;

(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.

4-16-8 Private Right of Action-Remedial Action Costs

(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:

(1) The Tribe or instrumentalities of the Tribe (except where specifically provided for by waiver of sovereign immunity); or

(2) As provided in section 4-16-4(d), subparts (4) and (6).

(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.

4-16-9 Remedial Actions-Exemption from Procedural Requirements

(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.

4-16-10 Cleanup Standards

(a) Surface water groundwater soil and sediment 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, Appendix B, and Appendix C to this Chapter, the cleanup standards enforced by the Department shall be those standards set forth in Appendix A, Appendix B, and Appendix C which are incorporated in full herein by this reference.

(b) Application of standards:

(1) Application of standard methods A and B shall be at the sole discretion of the Department.

(2) When using Method C of the State of Washington Model Toxics Control Act the determination of "commercial" or "industrial" land use status shall be at the Department's discretion in consultation with the Tribal Planning Department. Commercial or industrial land use status shall not be granted in community wellhead protection zones as delineated by the Department nor shall it be granted in cases where in the opinion of the Department contamination from the site in question might be captured by a water source used for human consumption including but not limited to wells and springs.

(3) Background level will be determined by the Department based upon data and tests presented by the site owner operator.

(4) In cases involving multiple chemicals with multiple health effects the Department may use W.A.C. § 173-340 as guidelines to determine aggregate cleanup levels that are protective of human health and the environment.

(5) The Department may consult with state and federal agencies, institutes of higher learning, and other entities with expertise in toxic cleanup and human or environmental toxicology in order to determine clean up levels which are protective of human health and the environment.

4-16-11 Sovereign Immunity

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.

4-16-12 Definitions

(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.

(f) "Facility" means:

(1) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, or aircraft; or

(2) Any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located.

(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.

(i) "Hazardous Substance" means:

(1) Any "dangerous waste", defined as any discarded, useless, unwanted, or abandoned substances disposed of in such quantity or concentration as to pose a present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes:

(A) Have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties; or

(B) Are corrosive, explosive, flammable, or may generate pressure throughout decomposition or other means.

(2) Any "hazardous waste," defined as any waste which:

(A) Will persist in a hazardous form for three (3) years or more at a disposal site; and

(B) While in its persistent form:

(i) Presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic makeup of people or wildlife; or

(ii) Is toxic to people or wildlife; or

(iii) Adversely affects living organisms in soil, sediment, and water, or air; or

(C) If disposed of at a disposal site in such quantities or concentrations as might present a hazard to people or the environment.

(3) Any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics of dangerous waste or extremely hazardous waste.

(4) Any substance that, on March 1, 1989, is a hazardous substance under section 101(14) of the federal cleanup law, 42 U.S.C. § 9601(14).

(5) Petroleum or petroleum products, and

(6) Any substance or category of substances, including solid waste decomposition products, determined by the director to present a threat to human health or the environment if released into the environment.

(7) The term hazardous substance does not include, any of the following when contained in an underground storage tank from which there is not a release: crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal and Tribal laws.

(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:

(1) Operating the facility where the borrower has defaulted on the loan or otherwise breached the security agreement;

(2) Operating the facility to preserve the value of the facility as an ongoing business;

(3) The operation is being done in anticipation of a sale, transfer, or assignment of the facility; and

(4) The operation is being done primarily to protect a security interest. Operating a facility for longer than one year prior to foreclosure or its equivalents shall be presumed to be operating the facility for other than to protect a security interest.

(o) "Owner or operator" means:

(1) Any person with any ownership interest in the facility or who exercises any control over the facility; or

(2) In the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment;

(3) The term does not include:

(A) The Tribe or any Tribal instrumentality which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the Council involuntarily acquires title. This exclusion does not apply to an instrumentality of the Tribe which is subject to a waiver of sovereign immunity, which has caused or contributed to the release or threatened release of a hazardous substance from the facility;

(B) A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person's security interest in the facility. Holders after foreclosure and its equivalent and holders who engage in any of the activities identified in section 4-16-12(p), sub-subparts (E) through (G) of this section shall not lose this exemption provided the holder complies with all of the following:

(i) The holder properly maintains the environmental compliance measures already in place at the facility;

(ii) The holder complies with the reporting requirements in the rules adopted under this Chapter;

(iii) The holder complies with any order issued to the holder by the Department to abate an imminent or substantial endangerment;

(iv) The holder allows the Department or potentially liable persons under an order, agreed order, or settlement agreement under this Chapter access to the facility to conduct remedial actions and does not impede the conduct of such remedial actions;

(v) Any remedial actions conducted by the holder are in compliance with any preexisting requirements identified by the Department, or, if the Department has not identified such requirements for the facility, the remedial actions are conducted consistent with this Chapter; and

(vi)The holder does not exacerbate an existing release. The exemption in this section 4-16-12(o), subpart (3)(B) does not apply to holders who cause or contribute to a new release or threatened release or who are otherwise liable under section 4-16-4(a), subparts (2), (3), (4), and (5); provided, however, that a holder shall not lose this exemption if it establishes that any such new release has been remediated according to the requirements of this Chapter and that any hazardous substances remaining at the facility after remediation of the new release are divisible from such new release;

(C) A fiduciary in his, her, or its personal or individual capacity. This exemption does not preclude a claim against the assets of the estate or trust administered by the fiduciary or against a non-employee agent or independent contractor retained by a fiduciary. This exemption also does not apply to the extent that a person is liable under this Chapter independently of the person's ownership as a fiduciary or for actions taken in a fiduciary capacity which cause or contribute to a new release or exacerbate an existing release of hazardous substances. This exemption applies provided that, to the extent of the fiduciary's powers granted by law or by the applicable governing instrument granting fiduciary powers, the fiduciary complies with all of the following:

(i) The fiduciary properly maintains the environmental compliance measures already in place at the facility;

(ii) The fiduciary complies with the reporting requirements in the rules adopted under this Chapter;

(iii) The fiduciary complies with any order issued to the fiduciary by the Department to abate an imminent or substantial endangerment;

(iv) The fiduciary allows the Department or potentially liable persons under an order, agreed order, or settlement agreement under this Chapter access to the facility to conduct remedial actions and does not impede the conduct of such remedial actions;

(v) Any remedial actions conducted by the fiduciary are in compliance with any preexisting requirements identified by the Department, or, if the Department has not identified such requirements for the facility, the remedial actions are conducted consistent with the rules adopted under this Chapter; and

(vi) The fiduciary does not exacerbate an existing release.

The exemption in this section 4-16-12(o), subpart (3)(C) does not apply to fiduciaries who cause or contribute to a new release or threatened release or who are otherwise liable under section 4-12-4(a), subparts (2), (3), (4), and (5); provided however, that a fiduciary shall not lose this exemption if it establishes that any such new release has been remediated according to the requirements of this Chapter and that any hazardous substances remaining at the facility after remediation of the new release are divisible from such new release. The exemption in this section 4-16-12(o), subpart (3)(C) also does not apply where the fiduciary's powers to comply with this section 4-16-12(o), subpart (3)(C) are limited by a governing instrument created with the objective purpose of avoiding liability under this Chapter or of avoiding compliance with this Chapter; or

(D) Any person who has any ownership interest in, operates, or exercises control over real property where a hazardous substance has come to be located solely as a result of migration of the hazardous substance to the real property through the ground water from a source off the property, if:

(i) The person can demonstrate that the hazardous substance has not been used, placed, managed, or otherwise handled on the property in a manner likely to cause or contribute to a release of the hazardous substance that has migrated onto the property;

(ii) The person has not caused or contributed to the release of the hazardous substance;

(iii) The person does not engage in activities that damage or interfere with the operation of remedial actions installed on the person's property or engage in activities that result in exposure of humans or the environment to the contaminated ground water that has migrated onto the property;

(iv) If requested, the person allows the Department potentially liable persons who are subject to an order, agreed order, or consent decree, and the authorized employees, agents, or contractors of each, access to the property to conduct remedial actions required by the Department. The person may attempt to negotiate an access agreement before allowing access; and

(v) Legal withdrawal of groundwater does not disqualify a person from the exemption in this section 4-16-12(o), subpart (3)(D).

(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:

(A) A holder with the mere capacity or ability to influence, or the unexercised right to control facility operations;

(B) A holder who conducts or requires a borrower to conduct an environmental audit or an environmental site assessment at the facility for which indicia of ownership is held;

(C) A holder who requires a borrower to come into compliance with any applicable laws or regulations at the facility for which indicia of ownership is held;

(D) A holder who requires a borrower to conduct remedial actions including setting minimum requirements, but does not otherwise control or manage the borrower's remedial actions or the scope of the borrower's remedial actions except to prepare a facility for sale, transfer, or assignment;

(E) A holder who engages in workout or policing activities primarily to protect the holder's security interest in the facility;

(F) A holder who prepares a facility for sale, transfer, or assignment or requires a borrower to prepare a facility for sale, transfer, or assignment;

(G) A holder who operates a facility primarily to protect a security interest or requires a borrower to continue to operate, a facility primarily to protect a security interest; and

(H) A prospective holder who, as a condition of becoming a holder, requires an owner or operator to conduct an environmental audit conduct an environmental site assessment, come into compliance with any applicable laws or regulations, or conduct remedial actions prior to holding a security interest is not participating in the management of the facility.

(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) "Sediment" means unconsolidated material eroded from parent rock, including soil and/or any man-made unconsolidated solid material of a particulate nature, which exists below the ordinary high water mark of any water body or wetland.

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

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

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

4-16-13 Captions

As used in this Chapter captions constitute no part of the law.

4-16-14 Construction

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.

4-16-15 Effective Date

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

4-16-16 Severability

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.

2. Tribal Air Quality Standards

EPA is authorized to directly implement the CAA in Indian country. However, over 100 tribes are now pursuing the development of air quality management programs, and many more have expressed an interest. Many tribes are monitoring their air for a variety of pollutants, from ozone and particulate matter, to mercury and acid rain, as well as developing emission inventories to understand the sources of air pollution on the reservations. Some tribes have been approved to implement CAA provisions and are developing TIPs to address violations of air quality standards; such tribes expect to apply for approval to run ongoing programs in the near future. Other tribes are developing operating permit programs for both major and minor sources of air pollution.[19]

3. Tribal Water Quality Standards for Tribes in EPA Region X[20]

· Confederated Tribes of the Chehalis Reservation (Effective February 3, 1997)

· Federal Water Quality Standards Regulations for the Confederated Tribes of the Colville Reservation (40 CFR 131.35) (Effective July 1, 2005)

· Confederated Tribes of the Umatilla Indian Reservation of Oregon Water Quality Standards (Effective October 18, 2001)

· Confederated Tribes of the Warm Springs Indian Reservation of Oregon Water Quality Standards (Effective July 20, 2006)

· Kalispel Indian Community of the Kalispel Reservation Water Quality Standards (Effective June 24, 2004)

· Makah Tribe Water Quality Standards for Surface Waters (Effective September 29, 2006)

· Port Gamble S'Klallam Tribe Water Quality Standards (Effective September 27, 2005)

· Puyallup Tribe of Indians Water Quality Standards (Effective October 31, 1994)

· Spokane Tribe of Indians Water Quality Standards (Effective April 22, 2003)

Related Practice Areas

• Environmental