THE INTER TRIBAL COUNCIL OF ARIZONA, INC. MODEL TRIBAL SOLID WASTE MANAGEMENT CODE CHAPTER ONE--LEGISLATIVE FINDINGS AND PURPOSE Sec. 1.101 Short Title and Definitions. This Code shall be known as the Tribe's Solid Waste Management Code (herein "the Code"). Definitions of words used herein are provided in Chapter Twenty-Three. Sec. 1.102 The Tribe's Inherent Sovereign Power To Manage And Regulate Solid Waste On The Reservation. The power to manage and regulate the storage, collection, transportation, handling, treatment and disposal of solid waste on the ____________ Reservation (herein "the Reservation"), which is anywhere within the exterior boundaries of the Reservation, inherently resides within the retained sovereign power of the _____________ Tribe (herein "the Tribe"). The Tribe is a sovereign Indian Tribe organized pursuant to the Act of _____________ , ____ Stat. ____, as amended, and approved by the Secretary of the Interior, _________________ , on ____________, 19 , as amended from time to time thereafter. Pursuant to the Tribe's Constitution and Bylaws, as amended, the ______________ Tribal Council (herein also referred to as "the Council") is the governing body of the Tribe. This Code is enacted pursuant to the sovereign tribal powers expressly delegated to the Council in Article ______________ of the Tribe's Constitution, which authorizes the Council to manage and otherwise deal with Tribal lands, natural resources and property; to promulgate and enforce ordinances providing for the health, safety, and welfare of the Tribe and its members and residents; to maintain law and order and to protect the environment on the Reservation; to administer justice on the Reservation; to regulate Tribal boards, agencies, and employees; and to delegate to Tribal boards, agencies, and employees, the foregoing powers, subject to review by the Council. Sec. 1.103 The Tribe's Solid Waste Policies. The Tribe desires to manage and regulate the disposal of solid waste on the Reservation in order to protect the Tribal environment, its natural resources, and the health, welfare, political integrity, and economic security of the Tribe, its members, and residents living on the Reservation. The Tribe and certain Federal agencies may be required by Federal law to comply with the disposal of solid wastes on the Reservation under the Federal Solid Waste Disposal Act (herein "the SWDA"), as amended by the Resource Conservation and Recovery Act (herein "RCRA"), 42 U.S.C.A. Secs. 6901-6992; and more specifically, Subchapter IV, "State or Regional Solid Waste Plans", 42 U.S.C.A. Secs. 6941-6949(a), or SWDA Secs. 4001-4010. These Federal laws also include the various solid waste regulations promulgated thereunder by the U.S. Environmental Protection Agency (herein "EPA"), including the comprehensive final rules and regulations contained in 40 CFR Part 258, (herein "the Part 258 Criteria"), for the location, design, operation, closure, post- closure, and financial assurance requirements for municipal solid waste landfills. The Tribe intends by the adoption of this Code, to comply with the SWDA, and the Part 258 Criteria. Once the Tribe's Solid Waste Management Plan is adopted by the Tribal Council, the Director of the Tribe's Solid Waste Agency shall apply to EPA for its approval of the Tribe's solid waste program, as regulated under this Code, pursuant to the requirements of 40 CFR Part 239, titled the "State and Tribal Implementation Rule." Upon EPA approval of the Tribe's solid waste program under 40 CFR Part 239, the Tribe will have the same flexibility as States in complying with the Part 258 Criteria. The Code prohibits the disposal of any solid waste except in MSWLFs which comply with the Part 258 Criteria. Disposal of solid waste at "open dumps" is prohibited under this Code. Sec. 1.104 The Tribe's Sovereign Immunity. Neither the Code, nor the Tribe's solid waste program, nor any action or agreement of the Environmental Protection Board or Solid Waste Agency, shall be construed as, or is intended to be, a waiver or modification of any sovereign immunity now enjoyed by the Tribe, or a consent by the Tribe to jurisdiction or suit against it. The Tribe reserves the right to contest the jurisdiction of the Federal Court in any citizens' suit filed against it under Section 7002 of the SWDA, except only as such jurisdiction may be expressly waived by the Tribe in such suit. The Tribe, the Council and its members; the Tribe's Environmental Protection Board and its members; the Tribe's Solid Waste Agency, and its Director and employees; and all other Tribal officers, employees, representatives, or agents thereof, who are performing their duties by implementing or enforcing the Code and the Tribe's solid waste pro- gram, are immune from suit for monetary damages in any court of law, and they do not waive any of their sovereign rights or immunities; executive privileges or right to privacy or confidentiality. The Tribe, the Tribe's Environmental Protection Board and the Tribe's Solid Waste Agency may enter into such contracts as are authorized by the Council, for the purpose of implementing or enforcing the Code and the Tribe's solid waste program; provided that such contracts shall not be construed to be a waiver of the sovereign rights or immunities of the Tribe, or any board, agency, entity, officer, employee, representative, or agent thereof. Sec. 1.105 The Tribe Has Civil Jurisdiction Under The Solid Waste Management Code Over All Persons And Places Within The Exterior Boundaries Of The Reservation. The Tribe has inherent sovereignty to exercise civil authority and jurisdiction over the conduct of Tribal members and all other persons on all lands within the exterior boundaries of the Reservation, under the Code, to maintain the environment, natural resources, public health, safety, welfare, political integrity and economic security of the Tribe. Because any violations of this Code or any rules or regulations adopted thereunder will demonstrably and seriously impact the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe, this Code, and any rules and regulations adopted thereunder, shall apply to: (1) all persons within the exterior boundaries of the Reservation, without exception, including but not limited to, all Tribal members, and all other persons on the Reservation, including any Indians who are members of other Indian Tribes, all non-Indians, and any other person as defined under the Code; and (2) all places and lands located anywhere within the exterior boundaries of the Reservation, including all trust and non-trust lands, and notwithstanding the issuance of any patent, fee, allotment, right-of-way, lease, or any real property interest of any kind, held by any person as defined under the Code. Sec. 1.106 Purposes Of The Solid Waste Management Code. The purposes of the Code are to: (1) Protect the health and safety of Tribal members and all other persons within the exterior boundaries of the Reservation; (2) Protect the cultural, social and economic stability of residential, agricultural, commercial, industrial, forest, riparian, and environmentally sensitive lands within the Reservation; (3) Protect the historical and cultural values and traditions of the Tribe, the Reservation as a permanent Tribal homeland, and the aboriginal character of the Reservation; (4) Prevent air, water, and land from solid and hazardous waste pollution, including contamination of the Tribe's aquifers, groundwaters, surface waters, drinking water supplies, and all other natural resources; (5) Prevent the deterioration of the environment, standard of living, quality of life, welfare and well-being of all persons within the exterior boundaries of the Reservation; (6) Provide and promote Tribal environmental protection and services within the Reservation, and to regulate environmental activities under principles of Tribal sovereignty; and (7) Finance, implement, regulate, and enforce environmental standards and criteria, orders and permit conditions, and laws and regulations under the Code, for the sanitary storage, collection, transportation and disposal of all solid waste within the exterior boundaries of the Reservation. Sec. 1.107 Consensual Relations Among Non-Members, The Tribe, And Tribal Members. Any person who is not a member of the Tribe who uses land anywhere within the exterior boundaries of the Reservation, whether trust or non-trust land, enters into consensual relationships with the Tribe or its members, through commercial dealings, contracts, leases, or other arrangements. Such person's use of land involving the storage, collection, transportation, and disposal of solid waste on the Reservation will have a demonstrably serious impact upon the environment, natural resources, public health, safety, welfare, political integrity, and economic security of the Tribe, and its members, unless such use is in compliance with the provisions of this Code, and any rules or regulations promulgated thereunder. Sec. 1.108 Applicability Of The Solid Waste Management Code. Any person who is anywhere within the exterior boundaries of the Reservation, whether on trust or non-trust lands, agrees to comply with, and is subject to the Code, and any rules or regulations promulgated thereunder; all Tribal laws; and all orders of the Environmental Protection Board, Solid Waste Agency, and Tribal Court. All such persons shall have consented to the civil jurisdiction of the ______________ Tribal Court (herein "the Tribal Court"), and shall be subject to civil prosecution, civil penalties, civil damages, or any other civil remedies imposed or awarded by the Tribal Court for any violations of the Code, or any rules or regulations promulgated thereunder. CHAPTER TWO--THE TRIBE'S ENVIRONMENTAL PROTECTION BOARD. Sec. 2.101 Establishment Of The Environmental Protection Board. There is an Environmental Protection Board (herein "the Board"), hereby established, which shall be composed of three Commissioners, all of whom shall be members of the Tribe. The Commissioners shall be appointed by the Chairman of the Tribe with the advice and consent of the Council. Each Commissioner shall serve a term of four (4) years, but to provide for a staggering of terms for Commissioners, one of the original Commissioners shall be appointed for a term of two (2) years only, one for a term of three (3) years only, and one for a term of four (4) years. A Commissioner may only be removed by the Council for cause in compliance with Tribal law. If a Commissioner is removed, resigns or is otherwise unable to serve, a replacement shall be appointed by the Chairman of the Tribe with the advice and consent of the Tribal Council, and such replacement shall serve the remaining term of the replaced member. The Commissioners shall elect a Chairman from among themselves at the end of each calendar year to serve as the Chairman for the succeeding calendar year. A Commissioner may serve as Chairman of the Board for succeeding calendar years. The expenses of the Commissioners, including any staff, equipment and training, shall be pursuant to a budget which must be approved by the Council. The Council shall establish a salary for the Commissioners commensurate with the amount of time reasonably and necessarily expended by them. Sec. 2.102 Quorum and Meetings. The business of the Board will be conducted at meetings of the Board duly called and noticed in writing. A quorum must be present, which must consist of at least two (2) Commissioners. Any substantive action of the Board must be taken by the affirmative votes of at least two (2) Commissioners and must be recorded in a written resolution of the Board. The Board shall meet at such places and times as may be necessary for the discharge of its duties. Meetings of the Board may be called by the Chairman or by two (2) of the Commissioners. Any meeting of the Board shall be preceded by at least five (5) days written notice to the Commissioners, except where immediate action is necessary to adequately protect human health and the environment. Sec. 2.103 General Powers And Duties Of The Environmental Protection Board. The Board, shall implement, administer, and enforce the Code, and the Tribe's solid waste program, pursuant to all of the powers and duties delegated to it herein. The Board shall also be responsible to administer other environmental programs as authorized under Tribal law. The Board is not authorized to consent to jurisdiction, liability, or waiver of sovereign immunity. Sec. 2.104 The Environmental Protection Board Shall Develop The Tribe's Solid Waste Management Plan. The Board, with the assistance of the Director of the Tribe's Solid Waste Agency, shall develop the Tribe's Solid Waste Management Plan (herein "the Plan"), which shall include the identification of, and a plan for the closing of all "open dumps" within the Reservation, in accordance with the SWDA and Part 258 Criteria. The Plan shall also include the formulation of Tribal policies for all solid waste collection, transportation, handling, treatment, and disposal on or off the Reservation. If feasible, the Plan shall include a resource recovery program for the recycling of solid wastes, and a program for the disposal of household hazardous wastes other than in a MSWLF on the Reservation. The Plan shall also include a description of any MSWLFs on the Reservation that are in compliance with the Part 258 Criteria, which will continue to receive solid waste. Such Plan shall contain a descriptive narration of the location, design and operation of such MSWLFs, and how such MSWLFs will satisfy the Part 258 Criteria. The Plan shall also include: (a) An estimation of the volume and composition of all solid waste which is generated on the Reservation, and an estimation of the volume and composition of solid waste from sources outside the Reservation that may be disposed of in any MSWLF on the Reservation pursuant to any intergovernmental agreement that the Tribal Council may authorize; (b) An identification of the responsibilities of other Tribal agencies and entities involved in the implementation of the Tribe's solid disposal waste program; and the distribution of Federal or State funds to the Tribal authorities responsible for development and implementation of the Tribe's solid waste disposal program; (c) A review of the Tribal regulatory systems which are necessary to implement the Tribe's solid waste disposal program, and enforce the Code, and rules or regulations promulgated thereunder; (d) A review of any contracts for the closing of all "open dumps" on the Reservation, or the removal of solid waste disposed of at "open dumps" on the Reservation to duly authorized facilities off the Reservation, and an assessment of such costs; (e) A review of the 40 CFR Part 257 Criteria and the authorization of the disposal of any solid waste on the Reservation under the Part 257 Criteria under rules and regulations to be adopted by the Board; (f) The identification of preferred locations on the Reservation for the establishment of new MSWLFs; and a review of whether groundwater monitoring could be suspended at such locations under 40 CFR Sec. 258.50(b); and (g) A study of how solid waste will be disposed of on or off the Reservation, in compliance with the Part 258 Criteria, including an assessment of costs for constructing and operating MSWLFs, or transfer stations on the Reservation, and an assessment of costs for the collection and transportation of solid waste on or off the Reservation. The Plan may also include any other matters which are relevant to the Tribe's solid waste disposal program. The Board shall submit the Plan to the Council, in writing, for its review, any modifications, if necessary, and for the Council's final approval. Sec. 2.105 The Environmental Protection Board Shall Identify And Close All Open Dumps On The Reservation. In compliance with the SWDA, the Board shall identify and shall prohibit the disposal of any solid waste at all "open dumps" on the Reservation. The Board shall also take whatever action is necessary to close in a timely manner all "open dumps" on the Reservation as required by the Part 258 Criteria. An "open dump" is a landfill that does not satisfy the 40 CFR Part 258 Criteria. Sec. 2.106 The Environmental Protection Board Shall Issue Permits For The Location, Construction, Design, Operation, Closure, Post-Closure, And Financial Assurance Requirements For MSWLFS And For The Collection And Transportation Of Solid Waste. The Board shall have the authority and responsibility to issue permits for the location, design, construction, operation, closure, post-closure, and financial assurance requirements, for any MSWLFs on the Reservation. The Board shall also have the authority and responsibility to issue permits for the collection and transportation of solid waste on the Reservation. This authority shall not be delegated to the Director of the Solid Waste Agency. Sec. 2.107 Power Of The Environmental Protection Board To Conduct Hearings. In addition to other powers conferred upon it herein, the Board shall have the power to hold all public or administrative hearings specifically provided for under this Code. Sec. 2.108 Power Of The Environmental Protection Board To Take Remedial Action, Assess Civil Penalties, And Revoke, Suspend Or Modify Permits. The power of the Board to enforce compliance with the Tribe's solid waste disposal program, as more specifically set forth in Chapter Seventeen herein, includes the power to take remedial action, assess civil penalties, and revoke, suspend or modify permits. Sec. 2.109 Duty Of The Environmental Protection Board To Promulgate Rules And Regulations, And To Issue Solid Waste Guidance Documents. The Board shall promulgate rules and regulations from time to time, as required by the Code, or to implement or enforce any provisions or requirements of the Code, including a system of civil fines, sanctions and penalties, for violations of the Code or any rules and regulations promulgated under the Code. All rules and regulations promulgated by the Board within the scope of its authority and responsibility, shall be submitted to the Council for its approval, and adoption, before they are enforceable as Tribal law on the Reservation. The Board shall adopt rules and regulations for landfills on the Reservation under the 40 CFR Part 257 Criteria; for the collection and transportation of solid waste; and other rules and regulations as required herein. The Board, with the assistance of the Director of the Tribe's Solid Waste Agency, may also approve and issue "Guidance Documents" as part of the Tribe's solid waste program, which shall contain specific technical or scientific criteria for implementing the location, construction, design, operation, closure, or post-closure requirements for MSWLFs. Guidance documents may supplement the Part 258 Criteria, but any criteria set forth in any guidance document shall not be in conflict with any Part 258 Criteria, or contain any criteria which are less stringent than the Part 258 Criteria. Guidance documents issued by the Board, however, may provide more stringent criteria for MSWLFs than are required by the Part 258 Criteria. Guidance documents shall be enforceable if they are specifically referenced or attached, as part of, or as a condition of, any permit issued under the Code. Sec. 2.110 Power Of The Environmental Protection Board To Apply For And Obtain Federal Or State Financial And Technical Assistance To Implement The Tribe's Solid Waste Program. The Board is authorized to apply as soon as practicable for Federal or State financial aid, training, and technical assistance, for development of the Tribe's Solid Waste Management Plan, and to implement the Tribe's solid waste program. This shall include grants available from EPA's Regional Office as may be authorized under the SWDA; and includes any other Federal grants, funds, or assistance which may be available from the EPA; the U.S. Bureau of Indian Affairs; the U.S. Indian Health Service; the U.S. Department of Housing and Urban Development; the Administration for Native Americans; and any other Federal, State, or other governmental agencies or sources, including any Federal appropriations under the Indian Environmental General Assistance Program Act of 1992, P.L. 102-497. Sec. 2.111 The Environmental Protection Board Shall Hire A Qualified Director For The Tribe's Solid Waste Agency. The Board shall hire, subject to the approval of the Council, a qualified person with professional experience and certifications relating to the management and disposal of solid waste, to be the Director of the Tribe's Solid Waste Agency. The Director shall be an employee of the Tribe, and shall be paid a salary established by the Council. The Director shall manage the Solid Waste Agency on a day- to-day basis acting within the scope of his duties and powers as set forth in Chapter Three herein. Sec. 2.112 The Environmental Protection Board Shall Prepare And File An Annual Report With The Tribal Council. The Board shall prepare and file an annual report with the Council no later than July 1 of each year which shall review the progress achieved under the Tribe's solid waste program, and shall include any reports requested by the Tribal Council. The Board shall recommend what specific actions should be taken by the Council regarding the Tribe's solid waste program. CHAPTER THREE--THE TRIBE'S SOLID WASTE AGENCY Sec. 3.101 The Tribe's Solid Waste Agency. There is hereby established the ____________ Tribe's Solid Waste Agency (herein "the Solid Waste Agency"). The Solid Waste Agency shall have the powers, duties, and responsibilities as provided for herein. The Solid Waste Agency shall be managed by a Director appointed by the Board with the approval of the Council. The Director shall perform such duties as are specifically designated by the Code, or as may be assigned by the Board. Sec. 3.102 The Solid Waste Agency Is The Lead Tribal Agency. The Solid Waste Agency is hereby designated as the Lead Tribal Agency for all purposes under 40 CFR Part 239 and 40 CFR Part 258. The Solid Waste Agency shall communicate with EPA regarding the Tribe's solid waste program; prepare the application for EPA approval of the Tribe's solid waste program under the Part 258 Criteria; and make reports to the EPA in a manner and containing such information as the Board approves, excluding any confidential or privileged information. Sec. 3.103 Duties Of The Director Of The Tribe's Solid Waste Agency. The specific duties of the Director of the Solid Waste Agency shall include: (1) Assisting the Board develop the Tribe's Solid Waste Management Plan pursuant to the requirements of the Code; the SWDA; 40 CFR Parts 257 and 258; and 40 CFR Part 239. The goal of this plan shall be the proper collection and disposal of all solid waste on the Reservation in accordance with the SWDA, 40 CFR Parts 257 and 258, and the Code. (2) The development of rules and regulations and guidance documents which supplement the technical standards and criteria for the location, construction, design, operation, closure, and post-closure, requirements for MSWLFs; and which also provide the technical standards and criteria for the collection and transportation of solid wastes. (3) The preparation of an inventory and location of all sites on the Reservation where solid waste has been disposed, and a plan to close all sites as is required under 40 CFR Part 258. (4) The location of appropriate sites on the Reservation where MSWLFs might be located in compliance with the Code and 40 CFR Part 258. (5) The preparation of technical reports for the Board or Tribal Council, as may be requested from time to time, including environmental assessments as may be necessary. (6) The preparation of the application to EPA for approval of the Tribe's solid waste program under 40 CFR Part 239 and Part 258. (7) The administration, supervision, monitoring, investigation, and enforcement of solid waste collection, transportation, and disposal on the Reservation in compliance with the Code, and all laws, rules and regulations, and guidance documents promulgated thereunder. (8) The investigation and preparation of applications for Federal or State grants, funding, and financial and technical assistance to implement the Tribe's solid waste program. (9) The providing of any assistance to the Board as requested from time to time, in matters involving the Code, and the Tribe's solid waste program; assisting in public education as to matters involving solid waste collection and disposal on the Reservation; and assisting in any public, judicial, or administrative hearings, as provided for under the Code. (10) The supervision of the daily management of the Tribe's Solid Waste Agency, and the supervision, hiring and management of any employees of the Solid Waste Agency which are hired by the Tribe. (11) The issuance of compliance, cease and desist and remedial action orders to any permittee under the Code as provided in Chapter Seventeen herein; and the application for injunctive relief to abate pollution and other unlawful activities under the Code under Chapter Sixteen herein. Sec. 3.104 Duty Of The Director Of The Solid Waste Agency To Investigate The Activities Of Any Permittee Under The Code. Upon complaint by any person which establishes reasonable grounds, or upon its own motion, the Director of the Solid Waste Agency shall investigate the activities of any permittee under the Code. In conducting an investigation, the Solid Waste Agency shall have the authority, without reasonable notice, if necessary, to enter into the permittee's place of business, operation, or facility, to inspect any books or records of the permittee, to inspect any of the permittee's property, or sites of possible pollution, and to take samples. In addition, the Solid Waste Agency may require, or monitor such tests as it deems necessary, to ensure that the provisions of the Code, or any permit conditions, are being complied with by any owner/operator of a MSWLF, or transporter of solid waste. Such authority may be exercised by the Director of the Solid Waste Agency, including any authorized employee, agent or representative of the Solid Waste Agency, and including any agents of the U.S. Environmental Protection Agency who are specifically authorized by both the Director of the Solid Waste Agency and the Board. The Director of the Solid Waste Agency shall, in addition, have those powers and duties set forth in Chapter Nineteen of the Code regarding compliance monitoring of permittees. The Director of the Solid Waste Agency, or his agents, are authorized to investigate the activities of any person who is suspected to have violated, or may be violating, any provisions of the Code, any rules or regulations promulgated thereunder, or any permit conditions. CHAPTER FOUR--UNLAWFUL DISPOSAL OR BURNING OF SOLID OR HAZARDOUS WASTE ON THE RESERVATION Sec. 4.101 Prohibition Of Dumping Of Solid Waste. On or after _____________, 19__, any landfill or site where solid waste may have previously been disposed at anywhere within the exterior boundaries of the Reservation is deemed to be permanently closed, unless before then: (1) Such site is specifically determined by the Environmental Protection Board to be in compliance with 40 CFR Part 258; and (2) Such site is specifically determined by the Environmental Protection Board to be a MSWLF where solid waste may be disposed of under 40 CFR Part 258; or (3) Such site is specifically determined by the Environmental Protection Board to be a landfill where solid waste may be disposed of under 40 CFR Part 257. Any landfill site on the Reservation which has not been determined by the Board to be a MSWLF, or a landfill authorized to accept waste under 40 CFR Part 257, on or after ____________, 19__, is considered to be an open dump site. It is expressly prohibited and shall be unlawful, for any person to dispose of, or dump, scatter, or place, or cause to be dumped, scattered or placed, any solid waste as defined under this Code, including any hazardous waste as defined under this Code, at or near an open dump site within the exterior boundaries of the Reservation, or on any other land within the exterior boundaries of the Reservation, except as disposal may be permitted under the Code at a duly authorized and designated MSWLF or Part 257 landfill. Sec. 4.102 Prohibition Of Regulated Or Conditionally Exempt Small Quantity Generator Hazardous Waste. The receiving, accepting, handling, treatment, storage, processing, dumping or disposal of regulated hazardous waste, as defined under the Code anywhere within the exterior boundaries of the Reservation is expressly prohibited and unlawful. Transportation of any regulated hazardous waste within the exterior boundaries of the Reservation must be in full compliance with Federal law, or is otherwise unlawful. The collection, storage, transfer, transportation, and disposal off the Reservation of conditionally exempt small quantity generator hazardous waste generated on the Reservation, is subject to such rules and regulations as the Board may issue in compliance with Federal law. Any violation of such rules or regulations is expressly prohibited and unlawful. These prohibitions do not apply to household hazardous waste which is not a regulated hazardous waste, and which may lawfully be disposed of at a MSWLF on the Reservation. Sec. 4.103 Prohibition Of Burning Of Solid Or Hazardous Waste. On or after _____________, 19__, it is expressly prohibited, and shall be unlawful, for any person to burn any solid or hazardous waste at a MSWLF, or anywhere else within the exterior boundaries of the Reservation, except as the Board may specifically authorize or permit by rule or regulation which is not prohibited by Federal law. The Board may authorize by rule and regulation, the infrequent open burning of agricultural wastes, silvicultural wastes, landcleaning debris, diseased trees, or debris from emergency cleanup operations at a MSWLF. Sec. 4.104 Criminal Penalties. Any person over whom the Tribal court can exercise criminal jurisdiction, and who violates any of the provisions of Secs. 4.101; 4.102; or 4.103, shall, upon conviction in Tribal Court, be guilty of a criminal offense, and shall be subject to a fine of not less than One Hundred Dollars ($100.00), nor more than Five Thousand Dollars ($5,000.00), for each day each violation occurs, and in the discretion of the Tribal Court, may also be subject to imprisonment in the Tribal jail of not less than one day, nor more than ninety days, for each day each violation occurs. As an alternative sentence, any person found guilty of violating any of the provisions of Secs. 4.101; 4.102; or 4.103, may be placed on probation, and required by the Tribal Court to provide not less than forty (40) hours, but not more than two hundred (200) hours, of community service assisting the Solid Waste Agency, or performing other kinds of community service. Sec. 4.105 Civil Penalties. Any person who violates any of the provisions of Secs. 4.101; 4.102; or 4.103, is subject to the imposition of civil penalties for such unlawful activities. The Director of the Solid Waste Agency through the Tribe's Attorney General is authorized to file a civil action against such person on behalf of the Tribe in the Tribal Court for civil penalties, including reasonable attorney's fees and costs. Any civil action concerning such violation(s) shall be heard in the Tribal Court, and the alleged violator shall be served and have an opportunity to be heard. Any person who is found by the Tribal Court to have committed the alleged violation(s), shall be subject to a civil penalty, of not less than One Hundred Dollars ($100.00), but not more than Fifteen Thousand Dollars ($15,000.00), for each day each violation occurs, including reasonable attorney's fees and costs. Sec. 4.106 Civil Damages. The Director of the Solid Waste Agency through the Tribe's Attorney General is authorized to bring a civil action on behalf of the Tribe or its members, in the Tribal Court, or any other court of law, against any person who has committed any violation under Secs. 1-4-101; 1-4-102; or 1-4-103, for all civil damages caused, including damages to the land or natural resources of the Tribe or its members, and for the reasonable costs actually incurred or to be incurred by the Tribe for cleaning up any solid or hazardous waste, or abating the effects thereof, together with the costs of suit, including reasonable attorney's fees. The Tribal Council must approve the filing of any civil action for damages before such action is filed. Sec. 4.107 Other Remedies. Any Tribal law enforcement officer is authorized to seize the property of any person who commits and is charged with the criminal violation of any of the provisions of Secs. 4.101, 4.102, or 4.103, if such property while used in the commission of such offense(s) is located on the Reservation. If such person is convicted of any offense under Secs. 4.101, 4.102, or 4.103, such seized property shall be forfeited to the Tribe. Likewise, any Tribal law enforcement officer is authorized to seize the property of any person who commits any civil violation of any of the provisions of Secs. 4.101, 4.102, or 4.103, if such property while used in the commission of such offense(s) is located on the Reservation. Such property shall be seized as security for the payment of any civil penalties or damages which may be assessed or imposed, and such property is subject to forfeiture to the Tribe for payment of any civil penalties or damages actually assessed or imposed. All civil penalties assessed by the Tribal Court shall be paid to the Environmental Protection Board, and shall be retained in a trust fund designated for paying costs of remedial responses to environmental emergencies occurring on the Reservation, and shall only be expended for such purposes. This includes any property which is forfeited to the Tribe for payment of civil penalties. All civil damages shall be paid to the Tribe. This includes any property which is forfeited to the Tribe for payment of civil damages. Reasonable attorney's fees awarded in any civil action shall be paid to the Tribe, if the attorney(s) is an employee(s) of the Tribe, or shall otherwise be paid according to the provisions of any retainer agreement. All costs of suit awarded in any civil action shall be paid to the Tribe. Any person who is not a member of the Tribe who is found by the Tribal Court to have committed any violation(s) under Secs. 1-4-101; 1-4-102; or 1-4-103, may be excluded from the Reservation; and may have his, her or its rights to engage in commercial dealings or consensual activities on the Reservation suspended or terminated. Any civil penalties or damages imposed under this Chapter are in addition to, and do not supersede or limit any other remedies which may be available to the Tribe, including the filing of an action for injunctive relief in Tribal Court, or the filing of a civil action for civil damages or any other relief in any court of competent jurisdiction. CHAPTER FIVE--REQUIRED PERMITS FOR THE COLLECTION AND TRANSPORTATION OF SOLID WASTE AND MUNICIPAL SOLID WASTE LANDFILLS Sec. 5.101 Required Permits For The Collection And Transportation Of Solid Waste And The Construction And Operation Of MSWLFs. Tribally chartered corporations or agencies, private enterprises, or any other persons are required to obtain a permit from the Board to either collect and transport solid waste, or to construct or operate a municipal solid waste landfill(s) within the exterior boundaries of the Reservation. Any permittee shall be required to comply with the Code, any rule or regulation promulgated thereunder, all Tribal environmental standards and criteria, all relevant guidance documents, all permit conditions, all orders issued by the Board or Solid Waste Agency under authority of the Code, and all applicable Federal or Tribal laws, environmental in nature or otherwise. No tribally chartered corporation or agency, private enterprise, or person may collect or transport solid waste, or construct or operate a MSWLF within the exterior boundaries of the Reservation without first having obtained from the Board either (1) a solid waste collection and transportation permit; or (2) a solid waste facility construction and/or operation permit. Any qualified tribally chartered corporation, agency, private enterprise, or person may file an application with the Board for a permit to collect and transport solid waste, or to construct and/or operate a MSWLF on the Reservation. Sec. 5.102 Permits For The Construction And Operation of MSWLFs. Any application for a permit to construct and/or operate a MSWLF must contain all of the information, tests, and data that are necessary to demonstrate that the permittee will comply with all of the provisions of the Code; the SWDA; 40 CFR Part 258; and all solid waste rules or regulations, technical standards or criteria, or applicable guidance documents. In addition, the Director of the Solid Waste Agency, may require that a permittee acquire or perform such additional information, tests or studies, as he deems reasonably necessary to demonstrate compliance with the Code. The permit application to construct and/or operate a MSWLF must contain the following minimum information: (1) A legal description and area map of the site of the proposed facility. (2) A title report showing ownership of the site of the proposed facility, and all encumbrances, covenants, conditions, restrictions, reservations to title and easements and rights of way on or across the site. (3) Proof that the applicant is the owner or holds an interest or lease in the proposed site; that all taxes, fees and lease payments are current; and if not, that the applicant has a notarized consent from the owner approving the use of the land for purposes set forth in the application; approval from the Tribal Council, and if the land is leased or permitted under Title 25 of the United States Code, approval of the Secretary of Interior or his authorized delegate, and a certified copy of the lease or permit, with all exhibits and attachments thereto. (4) A general design plan for the facility certified by a professional engineer. (5) A map and aerial photograph of the area to be used for the MSWLF showing all land use and political jurisdiction within five miles of the landfill site. The map and aerial photograph shall be of sufficient scale to show all homes, airports, wells, water ways, topography, roads, and other objects that may be affected. (6) A report indicating the following: (a) The population and area to be served by the proposed site and life expectancy of the facility; (b) The geological formation, aquifer characteristics, and groundwater elevations below the lowest elevation of the site. Such data will be obtained by soil boring and other appropriate means; (c) The source and characteristics of cover material to be used; (d) Reliable data on existing ground water quality within 2,000 feet of the site; (e) Topography of the site and drainage patterns; and (f) Location of the 100 year flood plain as approved by the Director of the Solid Waste Agency in relation to the site. (7) A design and plan of operations for the facility, certified by a professional engineer, which identifies how the landfill will meet the standards and criteria of the Code and 40 CFR Part 258 for the location, design, performance, operating standards, groundwater monitoring, closure, post-closure, and financial assurance requirements. The design shall include, as well, one or more topographic maps with contour intervals. The maps should show the proposed fill area, borrow areas, access roads, drainage areas, fencing, equipment and buildings, and the groundwater monitoring systems. (8) A financial statement, estimating the cost of construction, operation, closure and post- closure of the site, explaining the applicant's financial condition and the applicant's ability to fund the continued operation, closure, and post-closure of the site in compliance with the Code and the financial assurance requirements of 40 CFR Part 258. (9) An identification statement certified as to its truth and accuracy, signed by the applicant, and notarized, containing the following information: (a) Name, address, social security number and phone number of all persons owning or holding an interest in the applicant of 5% or more; (b) Name, address, social security number, and phone number of all officers, directors, or partners; (c) A statement that no officer, director, partner or holder of an interest of 5% or more, has ever been convicted of a felony, and that no felony charges are currently pending; (d) A statement which discloses in detail any charge, complaint, fine, order, decree, statement, or finding of "no contest" for violation of any Tribal, Federal, State, county or municipal environmental or health law, regulation, permit or condition against any officer, director, partner or holder of an interest of 5% or more within the past five (5) years, including the jurisdiction, disposition, and name, address and phone number of the person who filed the original charge or complaint, and the name of the Director, Board, Administrative Body, Judge, Justice of the Peace, Magistrate or Arbitrator who levied or entered any fine, order, penalty, decree, statement or finding. (10) A current financial statement of the applicant's net worth, including a description of major assets and liabilities, and any other financial information requested by the Board. (11) A description of any judgments rendered against any officer, director, partner or holder of an interest of 5% or more in the applicant, for five (5) years preceding the date of the application. (12) A description of any bankruptcy or insolvency proceedings instituted by any officer, director, partner, or holder of an interest of 5% or more in the applicant, for five (5) years preceding the date of the application. The Board shall not issue a solid waste construction and/or operation facility permit unless the Tribe has issued a land use permit, or lease, authorizing the operation of the MSWLF facility. The Board may issue a solid waste construction and/or operation facility permit, only if it finds, on the basis of information contained in the application and otherwise available to it, and only after conducting a public hearing as specified in Sec. 5.104 herein, that the applicant will comply with the Code; the 40 CFR Part 258 Criteria; and all rules or regulations, technical standards and criteria, guidance documents, and permit conditions. The Board must also find that the applicant has the financial and technical ability to construct and/or operate, close, and post-close the MSWLF as required by the Code. The burden of proof shall rest on the applicant to demonstrate compliance with all Tribal solid waste criteria and requirements. The issuance or denial of any permit by the Board is completely discretionary. In issuing any permit, the Board may impose permit conditions which are more stringent than provided under the Code, if such are reasonably necessary. The Board shall not issue a solid waste construction and/or operation facility permit, unless it is convinced that the primary consideration of the permittee is to prevent environmental damage and protect the public health. The long- term protection of the Tribe's public health, environment, and natural resources, shall be a critical consideration for the Board's issuance or denial of a permit. A solid waste operation facility permit shall be valid for the operation, closure, and post-closure period designated and required for such MSWLF, but such permit is subject to revocation, suspension, or modification as provided in Chapter Seventeen herein. Any conditions imposed on any solid waste construction and/or operation facility permit issued by the Board may only be modified after a public hearing which is duly noticed regarding modification of such permit. Sec. 5.103 Permits For The Collection And Transportation Of Solid Waste. As a condition for the issuance of a solid waste collection and transportation permit, the Board shall require every vehicle operated by the transporter to be conspicuously marked to identify the solid waste transported. Every vehicle shall be marked with the trade name of the transporter, and the number of the solid waste transportation permit issued pursuant to this Section. Every vehicle and driver must be licensed by the State of _________, and must comply with all safety and insurance requirements of the State of _____________. As a condition for the issuance of a solid waste collection and transportation permit, a transporter agrees to make an annual report by December 1 of each year, to the Board, indicating the number and type of installations emptied or cleaned, the volume and nature of solid waste disposed of, the place and manner in which such solid waste was finally disposed, and such other information as the Board may require. A renewal may be denied by the Board for failure of the permittee to properly and timely file such annual report. Solid waste permits for the collection and transportation of solid waste must be renewed annually by the Board on a calendar basis. The Board shall adopt rules and regulations for solid waste collection and transportation on the Reservation, including the operation of transfer stations, and may impose whatever conditions it deems reasonably necessary to protect the environment, and the health, safety and welfare of the Tribe and its members before issuing any permit under this section. Sec. 5.104 Public Hearing On MSWLF Permit Applications. No solid waste construction and/or operation facility permit shall be issued unless there has been a public hearing conducted by the Board at which the applicant and all interested persons shall have an opportunity to present relevant evidence and be heard on whether the application should be granted, or whether there are any special conditions which should be included in such permit. All applications for a solid waste construction and/or operation facility permit, including all documentation required for such permit, shall be available for public review and inspection at least sixty (60) days in advance of the hearing. The Board shall publish weekly notice of such public hearing on each application beginning at least sixty (60) days in advance of the hearing in the most widely circulated newspaper on the Reservation, for three consecutive weeks. The Board shall also post notice of the public hearing near the proposed permanent site for a MSWLF, but viewable to the public, at least sixty (60) days in advance of the hearing. The Board may designate issues it deems most relevant for the public hearing in the public notice, but the Board shall consider all issues which are raised at the hearing. The public hearing shall be continued until all persons have had an opportunity to present their views. Sec. 5.105 Oath And Application Filing Fees. Each report and application filed shall be signed or notarized under oath in a form approved by the Board. Each application shall be accompanied by a reasonable filing fee established by the Board to reflect the Tribe's costs of processing the application or preparing an environmental assessment, the public notice and hearing, and the costs of technical and legal consultants to review the application, prepare an environmental assessment, attend the hearing, and to prepare the permit, exhibits, and guidance documents. Sec. 5.106 Fees And Taxes. In order to recover operating costs, the Tribe may impose reasonable fees on each permittee who constructs or operates a MSWLF, or collects and transports solid waste. Any fees to be imposed by the Tribe shall be specifically referred to in each permit. In addition, the Tribe may impose taxes on each permittee who operates a MSWLF, or collects and transports solid waste. The payment of such fees or taxes shall be a condition of maintaining such permit. CHAPTER SIX--GENERAL EFFECTIVE DATES FOR PART 258 CRITERIA, CLOSURE AND COVER DATES Sec. 6.101 General Effective Dates. The general effective date for the self-implementation of the Part 258 Criteria for certain MSWLFs is October 9, 1993, but the general effective date for certain other MSWLFs, is either April 9, 1994, or October 9, 1995. Because there are three different general effective dates for application of the Part 258 Criteria, the Board is directed to determine as part of the Tribe's Solid Waste Management Plan, which effective dates apply to each existing solid waste landfill facility on the Reservation. The Board shall determine if any facilities meet the small landfill exemption criteria in 40 CFR Sec. 258.1, which would extend the general effective date of the Part 258 Criteria to such facilities to October 9, 1995. Sec. 6.102 Closure And Cover Dates. The Board shall determine as part of the Tribe's Solid Waste Management Plan, which solid waste landfill facilities on the Reservation must be closed based upon the Part 258 Criteria; by what dates such facilities must be closed based upon the Part 258 Criteria; and by what dates the final covers must be installed on such facilities so that none of the other Part 258 Criteria will apply to such facilities. All solid waste landfill facilities on the Reservation that received solid waste on or after October 9, 1991, must have a final cover based upon the Part 258 Criteria. CHAPTER SEVEN--LOCATION RESTRICTIONS Sec. 7.101 In General. Subpart B of 40 CFR Part 258 establishes six location restriction criteria for MSWLFs, which are incorporated by reference herein. The Board, in its discretion, may impose more stringent location restrictions than the Federal criteria specified in Subpart B, as set forth herein. Three of these location restriction criteria apply to new and existing MSWLFs, and they require that existing MSWLFs must be closed by October 9, 1996, if the owner/operator cannot demonstrate to the satisfaction of the Board that the existing MSWLFs meet the specific location criteria. By October 9, 1996, all MSWLFs on the Reservation will have to satisfy the: (1) the airport safety criteria; (2) the floodplain criteria; and (3) the unstable area criteria. or else they must be closed. The Board is directed to determine as part of the Tribe's Solid Waste Management Plan, whether any existing MSWLFs comply with the airport safety; floodplain; and unstable area criteria, and if not, the Board shall order that they shall be closed as required by law. If the Tribe's solid waste disposal program is approved by EPA, then the Board has the discretion to extend the deadline for closing existing MSWLFs that do not meet these three criteria, for up to two years after October 9, 1996, but only if it finds that there is no alternative waste disposal capacity; and that there is no potential risk to human health and the environment. The other three location restriction criteria, namely, wetlands, fault areas, and seismic impact zone, do not apply to existing units, but do apply to any lateral expansion of any existing MSWLFs on or after October 9, 1993, and do apply to all new MSWLFs, on or after October 9, 1993. Sec. 7.102 Airport Safety. 40 CFR Sec. 258.10 specifies that new MSWLFs, existing MSWLFs, and lateral expansions may not be located within 10,000 feet of any airport runway end used by jet aircraft, or within 5,000 feet of any airport runway end used only by piston-type aircraft, unless the owner/operator demonstrates that the units are designed and operated so that the MSWLF unit does not pose a bird hazard to aircraft. The Board shall apply these airport location restriction criteria to existing, new, or lateral expansions of MSWLFs. The owner or operator shall demonstrate in the facility plan that the facility is designed and operated so that it does not pose a bird hazard to aircraft, and place this demonstration in the operating record. As to any existing MSWLF, there must be a demonstration placed in the operating record by the owner/operator that the airport safety criteria has not and will not be violated; otherwise the Board shall order that such site be closed. Any owner or operator who operates a MSWLF within a five mile radius of any airport runway end used by turbojet or piston-type aircraft, must notify the affected airport, and the appropriate Federal Aviation Administration (FAA) office. Sec. 7.103 Floodplains. 40 CFR Sec. 258.11 requires that an owner/operator of a new, existing, or lateral expansion of a MSWLF must demonstrate that a location within a 100 year floodplain will not restrict the flow of a 100 year flood, reduce the temporary storage capacity of the floodplain, or result in any washout of solid waste which would pose a hazard to human health or the environment. If any existing MSWLF does not satisfy the floodplain criteria, it must be closed by October 9, 1996, or up to two years later, if the Board finds that there is no alternative waste disposal capacity, and there is no immediate threat to human health and the environment. As to new MSWLFs, or lateral expansions, the Board on a site- specific basis, may adopt a more stringent flood plain location criteria than the Federal criteria, and determine that a new MSWLF shall not be located within a certain minimum distance of a 100 year floodplain, depending on the circumstances to prevent any possibility of a washout of solid waste by storm water, or surface water run off, and surface or groundwater contamination. As to any existing MSWLF, there must be a demonstration placed in the operating record by the owner/operator that the floodplain criteria has not and will not be violated; otherwise, the Board shall order that such site be closed. Sec. 7.104 Wetlands. "Wetlands" mean those areas which are defined in 40 CFR Sec. 232.2(r), and include, but are not limited to, swamps, marshes, bogs and similar areas, and are defined as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. No new MSWLFs or lateral expansions shall be located in wetlands, unless the owner/operator can make the demonstrations as required under the Federal criteria in 40 CFR Sec. 258.12. The Board, may in its discretion, however, refuse to permit any new MSWLFs, or lateral expansions of existing MSWLFs, in any areas which are wetlands as defined herein. Sec. 7.105 Fault Areas. 40 CFR Sec. 258.13 dealing with fault area criteria only applies to new MSWLFs or lateral expansions, and is incorporated herein. The Board shall not permit any new MSWLF units or lateral expansions to be located within 200 feet (60 meters) of a fault that has had displacement in Holocene time. For the purposes of this section: (a) "Fault" means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side. (b) "Displacement" means the relative movement of two sides of a fault measured in any direction. (c) "Holocene" means the most recent epoch of the Quaternary period extending from the end of the Pleistocene Epoch to the present. Sec. 7.106 Seismic Impact Zones. 40 CFR Sec. 258.14 dealing with seismic impact zones only applies to new MSWLFs or lateral expansions, and is incorporated herein. New MSWLFs or lateral expansions shall not be located in seismic impact zones, unless the owner/operator demonstrates to the satisfaction of the Board, and the Board finds, that all containment structures, including liners, leachate collection systems, and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material for the site. The owner/operator must place such demonstration in the operating record. For purposes of this Section, seismic impact zones are defined as areas having a 10 percent or greater probability that the maximum expected horizontal acceleration in lithifield earth material, expressed as a percentage of the earth's gravitation pull (g), will exceed 0.10g in 250 years. Sec. 7.107 Unstable Areas. 40 CFR Sec. 258.15 dealing with the unstable area criteria, like the airport safety and 100 year floodplain criteria, applies to existing, as well as new MSWLFs or lateral expansions of existing MSWLFs. 40 CFR Sec. 258.15 is incorporated by reference herein. Owners/operators of MSWLFs which are located in an "unstable area" must demonstrate that engineering measures have been incorporated into an MSWLF unit design to ensure that the integrity of the structural components of the MSWLF unit will not be disrupted. The following factors, at a minimum, must be considered when demonstrating whether an area is unstable: (1) On-site or local soil conditions that may result in significant differential settling; and (2) On-site or local geologic or geomorphologic features; and (3) On-site or local human-made features or events (both surface and subsurface). (4) For purposes of this section: (a) "Unstable area" means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. All MSWLFs on the Reservation which are located in an "unstable area" must be closed by October 9, 1996, absent a demonstration placed in the operating record by the owner or operator that such MSWLF satisfies the "unstable area" criteria. The Board shall not permit any new MSWLFs, or lateral expansion in any unstable areas. Sec. 7.108 Closure Of Existing Municipal Solid Waste Landfill Units Which Cannot Meet Location Restriction Criteria. Existing MSWLF units which cannot make the demonstrations specified in 40 CFR Sec. 258.10 (pertaining to airports), or 40 CFR Sec. 258.11 (pertaining to floodplains); or 40 CFR Sec. 258.15 (pertaining to unstable areas), must close by October 9, 1996, or later if permitted by the Board, in accordance with 40 CFR Sec. 258.16. Closure and post-closure activities must then be conducted in accordance with 40 CFR Secs. 258.60 and 258.61. The deadline for closure may be extended up to two years by the Board, but only if the owner/operator demonstrates, and the Board finds after conducting a public hearing that: (1) there is no available alternative disposal capacity; and (2) there is no immediate threat to human health and the environment. CHAPTER EIGHT--OPERATING CRITERIA FOR MSWLFs Sec. 8.101 In General. 40 CFR Secs. 258.20 through 258.29 are incorporated by reference herein. All owner/operators of MSWLFs shall comply with the Part 258 Criteria, in addition to any additional waste management operating criteria specified in this Code, rules or regulations, or in any conditions in the MSWLF facility operation permit, or in guidance documents, or in orders of the Board or Director of the Solid Waste Agency. Sec. 8.102 Procedures For Excluding The Receipt Of Regulated Hazardous Waste. Owners or operators of all MSWLF units must implement a written program under 40 CFR Sec. 258.20 at each facility for detecting and excluding all regulated hazardous wastes as defined in 40 CFR Part 261 and certain other unregulated hazardous wastes as defined herein, including conditionally exempt small quantity generator hazardous wastes, and polychlorinated biphenyls (PCBs) wastes as defined in 40 CFR Part 761. Operational activities to exclude regulated hazardous wastes and small quantity generator hazardous wastes, must include, at a minimum, the following: (1) A person on duty at all times during operating hours; (2) Random inspections of incoming loads; (3) Inspection of suspicious loads and recordkeeping of all inspection results; (4) Training of personnel to recognize hazardous wastes. The training should emphasize familiarity with containers and labels typically used for hazardous wastes and other hazardous materials; (5) Notification procedures if a regulated hazardous waste is discovered at a MSWLF, including the notification of the EPA Regional Administrator, and the Director of the Solid Waste Agency, and the transportation of such wastes off site to a RCRA subtitle C facility. Handling procedures should include securing the area; the obtaining of samples for testing purposes; the determination of the waste characteristics by analytical methods; and a contractual agreement with a hazardous waste handler with an EPA ID number for hauling hazardous waste off-site to an approved RCRA subtitle C facility. Conditionally exempt small quantity generator hazardous waste is defined under 40 CFR Part 261, and such wastes shall not be disposed of at any MSWLFs on the Reservation, even though such wastes are not regulated hazardous wastes. Sec. 8.103 Daily Cover Material Requirements. 40 CFR Sec. 252.21 is incorporated by reference herein. An owner/operator of a MSWLF unit must cover disposed solid waste with six inches of earthen material at the end of each operating day, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging. If the EPA approves the Tribe's solid waste program, then the Director of the Solid Waste Agency may approve alternate materials, or an alternate thickness for daily cover requirements, but only if an owner/operator can demonstrate, and the Director of the Solid Waste Agency finds that the alternative material or thickness will control disease vectors, fires, odors, blowing litter, and scavenging, without presenting a threat to human health and the environment. Sec. 8.104 Disease Vector Control. 40 CFR Sec. 258.22 is incorporated as follows: (1) Owners or operators of all MSWLF units must prevent or control on-site populations of disease vectors using techniques appropriate for the protection of human health and the environment. (2) For purposes of this section, "disease vectors" means any rodents, flies, mosquitoes, or other animals, including insects, capable of transmitting disease to humans. Sec. 8.105 Explosive Gases Control. 40 CFR Sec. 258.23 is incorporated by reference herein. There must be methane gas monitoring at all MSWLFs on the Reservation in compliance with 40 CFR Sec. 258.23. The Director of the Solid Waste Agency must approve any methane gas monitoring plan for a MSWLF. An owner/operator must immediately notify the Director of the Solid Waste Agency if the concentration of methane gas exceeds the lower explosive limit for methane in facility structures or at the facility property boundary. An owner/operator must also within seven days place in the operating record documentation of the methane gas levels detected and a description of the interim steps taken to protect human health. An owner/operator must also implement a remediation plan for methane gas releases within 60 days of detection, as approved by the Director of the Solid Waste Agency, and such remediation plan must be placed in the operating record. Sec. 8.106 Air Criteria. 40 CFR Sec. 258.24 is incorporated as follows: (1) Owners or operators of all MSWLFs must ensure that the units do not violate any applicable requirements developed under a Tribal Implementation Plan approved or promulgated by the Administrator of the EPA pursuant to section 110 of the Clean Air Act, as amended, or any other applicable Tribal air quality law. (2) Open burning of solid waste is prohibited at all MSWLF units, except as the Board may specifically authorize by rule or regulation which is not prohibited by Federal law. Sec. 8.107 Access Requirements. 40 CFR Sec. 258.25 is incorporated as follows: Owners or operators of all MSWLF units must control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural barriers, or both, as appropriate to protect human health and the environment. Sec. 8.108 Run-On/Run-Off Control Systems. 40 CFR Sec. 258.26 is incorporated as follows: (1) Owners or operators of all MSWLF units must design, construct, and maintain: (a) A run-on control system to prevent flow onto the active portion of the landfill during the peak discharge from a 25-year storm; (b) A run-off control system from the active portion of the landfill to collect and control at least the water volume resulting from a 24 hour, 25-year storm; and (c) Run-off from the active portion of the landfill unit must be handled in accordance with 40 CFR Sec. 258.27(a). Sec. 8.109 Surface Water Requirements. 40 CFR Sec. 258.27 is incorporated as follows: MSWLF units shall not: (a) Cause a discharge of pollutants into waters of the United States, including wetlands, that violate any requirements of the Clean Water Act, including, but not limited to, the National Pollutant Discharge Elimination System (NPDES) requirements, pursuant to section 402 of the Clean Water Act. (b) Cause the discharge of a nonpoint source of pollution to waters of the United States, including wetlands, that violate any provisions of the Clean Water Act, or any Tribal water quality laws. Sec. 8.110 Liquids Restrictions. 40 CFR Sec. 258.28 is incorporated herein. Bulk or noncontainerized liquid waste may not be placed in MSWLFs unless: (1) The waste is permitted household waste other than septic waste; or (2) The waste is leachate or gas condensate derived from the MSWLF unit and the MSWLF unit, whether it is a new or existing MSWLF, or lateral expansion, is designed with a composite liner and leachate collection system as described in 40 CFR Sec. 258.40(a)(2). Gas condensate means the liquid generated as the result of a gas recovery process at the MSWLF unit. Any MSWLF unit design documentation for placement of leachate or gas condensate in a MSWLF unit must be placed in the operating record, and the Director of the Solid Waste Agency must be notified that it has been placed in the operating record. Containers holding liquid waste may not be placed in a MSWLF unit unless: (1) The container is a small container similar in size to that normally found in household waste; (2) The container is designed to hold liquids for use other than storage; (3) The waste is household waste. Sec. 8.111 Recordkeeping Requirements. The recordkeeping requirements of 40 CFR Sec. 258.29 are incorporated as follows: (a) The owner or operator of a MSWLF unit must record and retain in an operating record, in a location to be approved by Director of the Solid Waste Agency, the following information as it becomes available: (1) Any location restriction demonstration required under Chapter Seven herein; (2) Inspection records, training procedures, and notification procedures required under Sec. 8.102 herein; (3) Gas monitoring results from monitoring and any remediation plans required by Sec. 8.105 herein; (4) Any MSWLF unit design documentation for placement of leachate or gas condensate in a MSWLF unit under Sec. 8.110 herein; (5) Any demonstration, certification, finding, monitoring, testing, or analytical data required under Chapter Ten herein; (6) Closure and post-closure care plans and any monitoring, testing, or analytical data as required under Chapter Eleven and Twelve herein; and (7) Any cost estimates and financial assurance documentation required by Chapter Thirteen herein; and (8) Any information demonstrating compliance with the small community exemption as required by 40 CFR 258.1(f)(2). (b) The owner or operator of a MSWLF unit must notify the Director of the Solid Waste Agency when documents from paragraph (a) of this section have been placed or added to the operating record, and all information contained in the operating record must also be furnished upon request to either the Board or the Director of the Solid Waste Agency; and shall be made available at all reasonable times for inspection by either the Board or the Director of the Solid Waste Agency. CHAPTER NINE--DESIGN CRITERIA Sec. 9.101 In General. The uniform design criteria for MSWLFs contained in 40 CFR Sec. 258.40 are incorporated by reference for new MSWLF units and lateral expansions of existing MSWLFs. If EPA has not approved the Tribe's solid waste program, then no new MSWLF units or lateral expansions shall be constructed unless they comply with the Part 258 uniform design criteria, which includes a composite liner and a leachate collection system as set forth in 40 CFR Sec. 258.40(a)(2). If EPA has approved the Tribe's solid waste program, however, the Board may approve the design criteria for a MSWLF, on a site-specific basis, in accordance with the 40 CFR Sec. 258.40(a)(1) performance criteria. Sec. 9.102 Design Criteria If EPA Has Not Approved The Tribe's Solid Waste Program. If the Tribe does not have an EPA approved solid waste program, then the uniform design criteria in 40 CFR Sec. 258.40(a)(2) shall apply as follows, unless both the Director of the Solid Waste Agency and Board determine that the small landfill exemption under 40 CFR Sec. 258.1(f)(1) applies, and that a MSWLF unit is exempt from the design criteria under Subpart D of 40 CFR Part 258. (1) There must be a composite liner, as defined in paragraph (2) below, and a leachate collection system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. (2) "Composite liner" means a system consisting of two components; the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component. Sec. 9.103 Design Criteria If EPA Has Approved the Tribe's Solid Waste Program. If EPA has approved the Tribe's solid waste program, then the design performance criteria in this section applies, and a composite liner and leachate collection system are not required, but the Director of the Solid Waste Agency may nevertheless require the same in his discretion. If the Tribe has an EPA approved solid waste program, or a MSWLF unit is determined to be exempt from Subpart D of 40 CFR Part 258, then the Director of the Solid Waste Agency in approving an alternative design for a MSWLF, must consider at least the following factors: (1) The hydrogeologic characteristics of the facility and surrounding land; and (2) The climatic factors of the area; and (3) The volume and physical and chemical characteristics of the leachate. In addition, any site-specific design must ensure that the concentration values for the chemicals listed in Table I of 40 CFR Part 258, which is incorporated by reference herein, will not be exceeded in the uppermost aquifer at the relevant point of compliance, as specified in 40 CFR Sec. 258.40(d) as follows: The relevant point of compliance specified by the Director of the Solid Waste Agency shall be no more than 150 meters from the waste management unit boundary and shall be located on land owned by the owner of the MSWLF unit. In determining the relevant point of compliance, the Director of the Solid Waste Agency shall consider at least the following factors: (1) The hydrogeologic characteristics of the facility and surrounding land; (2) The volume and physical and chemical characteristics of the leachate; (3) The quantity, quality, and direction of flow of ground water; (4) The proximity and withdrawal rate of the groundwater users; (5) The availability of alternative drinking water supplies; (6) The existing quality of the ground water, including other sources of contamination and their cumulative impacts on the ground water, and whether the ground water is currently used or reasonably expected to be used for drinking water; (7) Public health, safety, and welfare effects; and (8) Practicable capability of the owner/operator. CHAPTER TEN--GROUNDWATER MONITORING AND CORRECTIVE ACTION Sec. 10.101 In General. The groundwater monitoring and corrective action criteria contained in 40 CFR Secs. 258.50 through 258.58 are incorporated by reference herein, and apply to all existing MSWLFs, new MSWLFs, or any lateral expansions of any MSWLFs. Groundwater monitoring requirements under 40 CFR Secs. 258.51-258.55 may be suspended, under 40 CFR Sec. 258.50(b), if approved by the Board after a duly noticed public hearing, but only if, (1) the EPA has approved the Tribe's solid waste program, and (2): An owner or operator of a MSWLF can demonstrate that there is no potential for migration of hazardous constituents from that MSWLF unit to the uppermost aquifer during the active life of the unit and the post-closure care period. This demonstration must be certified by a qualified groundwater scientist and approved by the Director of the Solid Waste Agency, and must be based upon: (1) Site-specific field collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport, and (2) Contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and environment. Sec. 10.102 Groundwater Monitoring And Corrective Action. If the Director of the Solid Waste Agency does not approve the demonstration by a qualified groundwater scientist under 40 CFR Sec. 258.50(a), and the Board does not approve the suspension of groundwater monitoring requirements for a MSWLF under 40 CFR Sec. 258.50(a), then all of the groundwater monitoring and corrective action rules of subpart E of 40 CFR Part 258 are required, including those contained in 40 CFR Secs. 258.51-258.58. New or existing MSWLF units, or lateral expansions, must be in compliance with the groundwater monitoring requirements on or before certain specified dates as determined by the Director of the Solid Waste Agency based upon the Part 258 Criteria. Once groundwater monitoring is established at a MSWLF unit, such monitoring shall be conducted throughout the active life, closure, and post-closure care period. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency shall have the authority to make the flexibility determinations allowed under the Part 258 Criteria for a groundwater monitoring and corrective action program for a MSWLF, including but not limited to: (1) the groundwater monitoring systems; (2) the groundwater sampling and analysis requirements; (3) the detection monitoring program; (4) the assessment monitoring program; (5) the assessment of corrective measures; and (6) the selection of remedies. For each MSWLF that is subject to groundwater monitoring, the basic requirements for groundwater monitoring, and for corrective action, if necessary, are set forth herein. Although not all of the Part 258 Criteria are restated herein, an owner/operator is nevertheless required to comply with all Part 258 technical standards, including but not limited to monitoring well design and construction, sampling requirements, specified statistical methods and decision criteria, and quality assurance and chemical testing procedures, and all groundwater monitoring requirements in 40 CFR Part 258 are incorporated by reference herein. The Director of the Solid Waste Agency shall monitor and ensure that an owner/operator complies with all of the technical standards and quality assurance and chemical testing procedures that are required for groundwater monitoring under 40 CFR Part 258. Sec. 10.103 Groundwater Monitoring Systems. [40 CFR Sec. 258.51]. A groundwater monitoring system must be installed at a MSWLF unit that consists of a sufficient number of wells, installed at appropriate locations and depths, to yield groundwater samples from the uppermost aquifer that: (a) Represent the quality of background groundwater that has not been affected by leakage from the MSWLF unit; and (b) Represent the quality of groundwater passing the relevant point of compliance specified by the Director of the Solid Waste Agency, if the Tribe has an EPA approved solid waste program; or at the waste management unit boundary if the Tribe does not have an EPA approved solid waste program. The downgradient monitoring system must be installed at the relevant point of compliance, or at the waste management unit boundary, that ensures detection of groundwater contamination in the uppermost aquifer. (c) The number, spacing, and depths of monitoring systems shall be determined based upon site- specific technical information that must include thorough characterization of: (1) Aquifer thickness, groundwater flow rate, groundwater flow direction including seasonal and temporal fluctuations in groundwater flow; and (2) Saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials comprising the uppermost aquifer, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer; including, but not limited to: thickness, stratigraphy, lithology, hydraulic conductivities, porosities and effective porosities. (d) The groundwater monitoring system must be certified by a qualified groundwater scientist, and approved by the Director of the Solid Waste Agency. Such certification must then be placed in the operating record. Sec. 10.104 Groundwater Sampling And Analysis Requirements. [40 CFR Sec. 258.53]. The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide an accurate representation of groundwater quality at the background and downgradient wells installed in compliance with 40 CFR Sec. 258.51. The owner or operator must notify the Director of the Solid Waste Agency that the sampling and analysis program documentation has been placed in the operating record and the program must include procedures and techniques for: (1) Sample collection; (2) Sample preservation and shipment; (3) Analytical procedures; (4) Chain of custody control; and (5) Quality assurance and quality control. The groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents and other monitoring parameters in groundwater samples. Groundwater samples shall not be field-filtered prior to laboratory analysis. The sampling procedures and frequency must be protective of human health and the environment. The owner or operator must establish background groundwater quality in a hydraulically upgradient or background well(s) for each of the monitoring parameters or constituents required in the particular groundwater monitoring program that applies to the MSWLF unit, as determined under 40 CFR Sec. 258.54(a) or 40 CFR Sec. 258.55(a). Background groundwater quality may be established at wells that are not located hydraulically upgradient from the MSWLF unit if it meets the requirements of 40 CFR Sec. 258.51(a)(1). The number of samples collected to establish groundwater quality data must be consistent with the appropriate statistical procedures determined pursuant to 40 CFR Sec. 258.53(g). The sampling procedures shall be those specified under 40 CFR Sec. 258.54(b) for detection monitoring, 40 CFR Sec. 258.55(b) and (d) for assessment monitoring, and 40 CFR Sec. 258.56(b) of corrective action. The owner or operator must specify in the operating record one of the statistical methods in 40 CFR Sec. 258.53(g) to be used in evaluating groundwater monitoring data for each hazardous constituent. The statistical test chosen shall be conducted separately for each hazardous constituent in each well. Any statistical method chosen under 40 CFR Sec. 258.53(g) shall comply with the performance standards under 40 CFR Sec. 258.53(h). The owner or operator must determine whether or not there is a statistically significant increase over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the MSWLF unit, as determined under 40 CFR Secs. 258.54(a) or 258.55(a). In determining whether a statistically significant increase has occurred, the owner or operator must compare the groundwater quality of each parameter or constituent at each monitoring well designated pursuant to 40 CFR Sec. 258.51(a)(2) to the background value of that constituent, according to the statistical procedures and performance standards specified under paragraphs 40 CFR Sec. 258.53(g) and (h). Within a reasonable period of time after completing sampling and analysis, the owner or operator must determine whether there has been a statistically significant increase over background at each monitoring well. Sec. 10.105 Detection Monitoring Program. [40 CFR Sec. 258.54]. Detection monitoring is required at MSWLF units at all groundwater monitoring wells defined under 40 CFR Sec. 258.51(a)(1) and (2). At a minimum, a detection monitoring program must include monitoring for the constituents listed in Appendix I to 40 CFR Part 258, which is incorporated by reference herein. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may delete any of the Appendix I monitoring parameters for a MSWLF unit if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may also establish an alternative list of inorganic indicator parameters for a MSWLF unit, in accordance with the Part 258 Criteria, in lieu of some or all of the heavy metals (constituents 1-15 in Appendix I), if the alternative parameters provide a reliable indication of inorganic releases from the MSWLF unit to the groundwater under the factors set forth in 40 CFR Sec. 258.54(a)(2). The monitoring frequency for all constituents listed in Appendix I, or in the alternative list established by the Director of the Solid Waste Agency, shall be at least semiannual during the active life of the facility, including closure, and the post-closure period. A minimum of four independent samples from each background and downgradient well must be collected and analyzed for the Appendix I constituents, or the alternative list, during the first semiannual sampling event. At least one sample from each background and downgradient well must be collected and analyzed during subsequent semiannual sampling events. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may specify an appropriate alternative frequency for repeated sampling and analysis for Appendix I constituents, or the alternative list, during the active life, including closure, and the post-closure care period. The alternative frequency during the active life, including closure, shall not be less than annual. The alternative frequency shall be based upon these factors set forth in 40 CFR 258.54(b). If the owner or operator determines that there is a statistically significant increase over background for one or more of the constituents listed in Appendix I, or in the alternative list, at any monitoring well at the boundary specified under 40 CFR Sec. 258.51(a)(2), the owner or operator: (1) Must, within 14 days of this finding, place a notice in the operating record indicating which constituents have shown statistically significant changes from background levels, and notify the Director of the Solid Waste Agency that this notice was placed in the operating record; and (2) Must establish an assessment monitoring program meeting the requirements of 40 CFR Sec. 258.55, within 90 days, except as provided for under 40 CFR Sec. 258.54(c)(3). The owner or operator may demonstrate under 40 CFR Sec. 258.54(c)(3) that a source other than a MSWLF unit caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by a qualified groundwater scientist, and must be approved by the Director of the Solid Waste Agency. In the absence of a report approved by the Director of the Solid Waste Agency, the owner/operator must initiate an assessment monitoring program within 90 days of detecting such increases. Sec. 10.106 Assessment Monitoring Program. [40 CFR Sec. 258.55]. Assessment monitoring is required whenever a statistically significant increase over background has been detected for one or more of the constituents listed in Appendix I, or in the alternative list. Within 90 days of triggering an assessment monitoring program, and annually thereafter, the owner or operator must sample and analyze the groundwater for all constituents identified in Appendix II of 40 CFR Part 258, which is incorporated by reference herein. A minimum of one sample for each downgradient well must be collected and analyzed during each sampling event. For any new constituent detected in the downgradient wells as a result of the complete Appendix II analysis, a minimum of four independent samples from each background and downgradient well must be collected and analyzed to establish background for the new constituents. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may specify an appropriate subset of wells to be sampled and analyzed for Appendix II constituents during assessment monitoring; he may also delete any of the Appendix II monitoring parameters for a MSWLF unit, if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit; he may also specify an appropriate alternate frequency for repeated sampling and analysis for the full set of Appendix II constituents required by 40 CFR Sec. 258.55(b) during the active life, including closure and post-closure care of the unit based upon those factors set forth in 40 CFR Sec. 258.55(c). After obtaining the results from the assessment monitoring program for Appendix II constituents, the owner or operator must within 14 days place a notice in the operating record identifying the Appendix II constituents that have been detected, and notify the Director of the Solid Waste Agency that this notice has been placed in the operating record. Within 90 days after obtaining the results from the assessment monitoring program for Appendix II constituents, the owner or operator must on at least a semiannual basis thereafter, re-sample all wells specified by 40 CFR Sec. 258.51(a), conduct analyses for all constituents in Appendix I to this part, or in the approved alternative list, and for those constituents in Appendix II that are detected, and record their concentrations in the facility operating record. At least one sample from each background and downgradient well must be collected and analyzed during these sampling events. The alternative frequency for Appendix I constituents, or the alternative list, during the active life including closure shall be no less than annual. The alternative frequency shall be based on consideration of the factors specified in 40 CFR Sec. 258.55(c). Within 90 days after obtaining the results from the assessment monitoring program for Appendix II constituents, the owner or operator must (1) establish background concentrations for all Appendix II constituents detected pursuant to 40 CFR Sec. 258.55(b) or (d); and (2) establish groundwater protection standards for all Appendix II constituents detected pursuant to 40 CFR Sec. 258.55(b) or (d)(2). The groundwater protection standards shall be established in accordance with 40 CFR Sec. 258.55(h) or (i). If the concentrations of all Appendix II constituents are shown to be at or below background values, using the statistical procedures in 40 CFR Sec. 258.53(g), for two consecutive sampling events, the owner or operator must notify the Director of the Solid Waste Agency of this finding and may return to detection monitoring. If the concentrations of any Appendix II constituents are above background values, but all concentrations are below the groundwater protection standard established under 40 CFR Sec. 258.55(h) or (i), using the statistical procedures in 40 CFR Sec. 258.53(g), the owner or operator must continue assessment monitoring under 40 CFR Sec. 258.55. If one or more Appendix II constituents are detected at statistically significant levels above the groundwater protection standard established under 40 CFR Sec. 258.55(h) or (i) in any sampling event, the owner or operator must, within 14 days of this finding, place a notice in the operating record identifying the Appendix II constituents that have exceeded the groundwater protection standard and notify the Director of the Solid Waste Agency and the Board that the notice has been placed in the operating record. The owner or operator also: (1) Must characterize the nature and extent of the release by installing additional monitoring wells as necessary; (2) Must install at least one additional monitoring well at the facility boundary in the direction of contaminant migration and sample this well in accordance with 40 CFR Sec. 258.55(d)(2); (3) Must notify all persons who own the land or reside on the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with 40 CFR Sec. 258.55(g)(1); and (4) Must initiate an assessment of corrective measures as required by 40 CFR Sec. 255.56 within 90 days. An owner or operator may demonstrate that a source other than a MSWLF unit caused the contamination, or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by a qualified groundwater scientist and must be approved by the Director of the Solid Waste Agency and placed in the operating record. If a successful demonstration is made, the owner or operator must continue monitoring in accordance with the assessment monitoring program pursuant to 40 CFR Sec. 258.55, and may return to detection monitoring if the Appendix II constituents are below background as specified in 40 CFR Sec. 258.55(e). Until a successful demonstration is made, the owner or operator must comply with 40 CFR Sec. 258.55(g) including initiating an assessment of corrective measures. The Director of the Solid Waste Agency shall ensure that an owner or operator shall comply with all of the criteria set forth in 40 CFR Sec. 258.55, which includes the establishment of the groundwater protection standard for each Appendix II constituent. For constituents for which a maximum contaminant level (MCL) has been established under section 1412 of the Federal Safe Drinking Water Act (codified under 40 CFR Part 141), the groundwater protection standard shall be the MCL for that constituent, unless the background level is higher than the MCL, in which case the background concentration shall be the groundwater protection standard. For constituents for which MCLs have not been established under the Federal Safe Drinking Water Act, the groundwater protection standard shall be the background concentration level. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may establish an alternative groundwater protection standard for constituents for which MCLS have not been established, under the criteria in 40 CFR Sec. 258.55(i) and (j). The Director of the Solid Waste Agency shall ensure that an owner or operator complies with all criteria under 40 CFR Sec. 258.55, including conducting an analysis of all constituents that are required at the appropriate frequency, and ensuring that all operating records contain all the required analyses and notices. If the Tribe has an EPA approved solid waste program, the Director of the Solid Waste Program may establish the monitoring frequency for sampling and analysis of constituents according to the criteria in 40 CFR Sec. 258.55. Sec. 10.107 Assessment Of Corrective Measures. [40 CFR Sec. 258.56]. Within 90 days of finding that any of the constituents listed in Appendix II of this part have been detected at a statistically significant level exceeding the groundwater protection standards defined under 40 CFR Sec. 258.55(h) or (i), the owner or operator must initiate an assessment of corrective measures. Such an assessment must be completed within a reasonable period of time. The owner or operator must continue to monitor in accordance with the assessment monitoring program as specified in 40 CFR Sec. 258.55. The assessment shall include an analysis of the effectiveness of potential corrective measures in meeting all the requirements and objectives of the remedy as described under 40 CFR Sec. 258.57, addressing the factors set forth in 40 CFR Sec. 258.56. The assessment shall include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy and described under 40 CFR Sec. 258.57, addressing at least the following: (1) The performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies, including safety impacts, and control of exposure to any residual contamination; (2) The time required to begin and complete the remedy; (3) The costs of remedy implementation; and (4) The institutional requirements such as Tribal permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy(s). The owner or operator must discuss the results of the corrective measures assessment, prior to the selection of remedy, in a publicly held meeting by the Board, with interested and affected parties, after the Board publishes and provides reasonable notice of such meeting. Sec. 10.108 Selection Of Remedy. [40 CFR Sec. 258.57]. Based on the results of the corrective measures assessment conducted under 40 CFR Sec. 258.56, the owner or operator must select a remedy that, at a minimum, meets the standards listed in 40 CFR Sec. 258.57(b). The owner or operator must notify the Director of the Solid Waste Agency within 14 days of selecting a remedy, that a report describing the selected remedy has been placed in the operating record and how it meets the standards in 40 CFR Sec. 258.57(b). Under 40 CFR Sec. 258.57(b) remedies must: (1) Be protective of human health and the environment; (2) Attain the groundwater protection standards; (3) Control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of Appendix II constituents into the environment that may pose a threat to human health or the environment; and (4) Comply with standards for management of wastes as specified in 40 CFR Sec. 258.58(d). The owner or operator shall consider all of the evaluation factors set forth in 40 CFR Sec. 258.57(c) in selecting a remedy, and in specifying a schedule(s) for initiating and completing remedial activities. The owner or operator shall specify as part of the selected remedy a schedule(s) for initiating and completing remedial activities. Such a schedule must require the initiation of remedial activities within a reasonable period of time taking into consideration the factors set forth in 40 CFR Sec. 258.57(d)(1-8). If the Tribe has an approved EPA solid waste program, the Director of the Solid Waste Agency may determine that remediation of a release of an Appendix II constituent from a MSWLF unit is not necessary, under those factors set forth in 40 CFR Sec. 258.57(e)(1-4), and the Director may require the owner or operator to undertake source control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and significantly reduce threats to human health or the environment. Sec. 10.109 Implementation Of The Corrective Action Program. [40 CFR Sec. 258.58]. Based on the schedule established under 40 CFR Sec. 258.57(d) for initiation and completion of remedial activities, the owner or operator must: (1) Establish and implement a corrective action groundwater monitoring program that: (a) Meets the requirements of an assessment monitoring program under 40 CFR Sec. 258.55; (b) Indicates the effectiveness of the corrective action remedy; and (c) Demonstrates compliance with groundwater protection standard under 40 CFR Sec. 258.58(e). (2) Implement the corrective action remedy selected under 40 CFR Sec. 258.57; and (3) Take any interim measures necessary to ensure the protection of human health and the environment. Interim measures should, to the greatest extent practicable, be consistent with the objectives of and contribute to the performance of any remedy that may be required pursuant to 40 CFR Sec. 258.57. The owner or operator must consider the evaluation factors set forth in 40 CFR Sec. 258.58(a)(3) in considering whether any interim measures are necessary. An owner or operator may determine, based on information developed after implementation of the remedy has begun or other information, that compliance with the requirements of 40 CFR Sec. 258.57(b) are not being achieved through the remedy selected. In such cases, the owner or operator must implement other methods or techniques that could practicably achieve compliance with the requirements. If the owner or operator determines that compliance with requirements under 40 CFR Sec. 258.57(b) cannot be practically achieved with any currently available methods, the owner or operator must: (1) Obtain certification of a qualified groundwater scientist and approval by the Director of the Solid Waste Agency that compliance with requirements under 40 CFR Sec. 258.57(b) cannot be practically achieved with any currently available methods; (2) Implement alternate measures to control exposure of humans or the environment to residual contamination, as necessary to protect human health and the environment; and (3) Implement alternate measures for control of the sources of contamination, or for removal or decontamination of equipment, units, devices, or structures that are: (a) Technically practicable; and (b) Consistent with the overall objective of the remedy. (4) Notify the Director of the Solid Waste Agency within 14 days that a report justifying the alternative measures prior to implementing the alternative measures has been placed in the operating record. All solid wastes that are managed pursuant to a remedy required under 40 CFR Sec. 258.57, or an interim measure required under 40 CFR Sec. 258.58(a)(3), shall be managed in a manner: (1) That is protective of human health and the environment; and (2) That complies with any applicable Federal SWDA requirements. Remedies selected pursuant to 40 CFR Sec. 258.57 shall be considered complete when: (1) The owner or operator complies with the groundwater protection standards established under Secs. 258.55(h) or (i) at all points within the plume of contamination that lie beyond the groundwater monitoring well system established under 40 CFR Sec. 258.51(a). (2) Compliance with the groundwater protection standards has been achieved by demonstrating that concentrations of Appendix II constituents have not exceeded the groundwater protection standard for a period of three consecutive years using the statistical procedures and performance standards in 40 CFR Sec. 258.53(g) and (h). If the Tribe has an EPA approved solid waste plan, then the Director of the Solid Waste Agency may specify an alternative length of time during which the owner or operator must demonstrate that concentrations of Appendix II constituents have not exceeded the groundwater protection standards based upon the Part 258 Criteria. (3) All actions required to complete the remedy have been satisfied. Upon completion of the remedy, the owner or operator must notify the Director of the Solid Waste Agency within 14 days that a certification that the remedy has been completed in compliance with the requirements of 40 CFR Sec. 258.58(e) has been placed in the operating record. The certification must be signed by the owner or operator and by a qualified groundwater scientist, and must be approved by the Director of the Solid Waste Agency. The owner or operator shall then be released from the requirements for financial assurance for corrective action under 40 CFR Sec. 258.73. The Director of the Solid Waste Agency shall have the responsibility and authority to ensure that all 40 CFR Part 258 Criteria for a groundwater protection program for each MSWLF on the Reservation are complied with by an owner/operator of a MSWLF. If the Tribe has an EPA approved solid waste program, then the Director of the Solid Waste Agency may establish alternative schedules for demonstrating compliance with 40 CFR Sec. 258.51(d)(2), pertaining to notification of placement of certification in operating record; 40 CFR Sec. 258.54(c)(1), pertaining to notification that statistically significant increase (SSI) notice is in operating record; 40 CFR Sec. 258.54(c)(2) and (3), pertaining to an assessment monitoring program; 40 CFR Sec. 258.55(b), pertaining to sampling and analyzing Appendix II constituents; 40 CFR Sec. 258.55(d)(1), pertaining to placement of notice (Appendix II constituents detected) in record and notification of notice in record; 40 CFR Sec. 258.55(d)(2), pertaining to sampling for Appendix I and II; 40 CFR Sec. 258.55(g), pertaining to notification (and placement of notice in record) of SSI above groundwater protection standard; 40 CFR Secs. 258.55(g)(1)(iv) and 258.56(a), pertaining to assessment of corrective measures; 40 CFR Sec. 258.57(a), pertaining to selection of remedy and notification of placement in record; 40 CFR Sec. 258.58(c)(4), pertaining to notification of placement in record (alternative correction action measures); and 40 CFR Sec. 258.58(f), pertaining to notification and placement in record (certification remedy completed). CHAPTER ELEVEN--CLOSURE CARE REQUIREMENTS Sec. 11.101 Closure Of MSWLFs. The closure and cover criteria only applies to MSWLFs which have received solid waste after October 9, 1991. The owner or operator of a MSWLF which has received solid waste after October 9, 1991, must install a final cover system that is designed to minimize infiltration and erosion in compliance with 40 CFR Sec. 258.60. The final cover system as set forth in 40 CFR Sec. 258.60(a) must be comprised of an erosion layer underlain by an infiltration layer as follows: 1. The infiltration layer must be comprised of a minimum of 18 inches of earthen material that has a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10-5 cm/sec, whichever is less; and 2. The erosion layer must consist of a minimum of 6 inches of earthen material that is capable of sustaining native plant growth. If EPA approves the Tribe's solid waste program, then the Director of the Solid Waste Agency may approve an alternative final cover design under 40 CFR Sec. 258.60(b) that includes: 1. An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in Sec. 258.60(a)(1); and 2. An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in Sec. 258.60(a)(2). This alternative final cover design may not be applied to landfills which ceased to receive solid waste on or after October 9, 1993. The owner or operator must prepare a written closure plan that describes the steps necessary to close a MSWLF unit at any point during its active life in accordance with the cover design requirements. The closure plan, at a minimum, must include the following information: 1. A description of the final cover and the methods and procedures to be used to install the cover; 2. An estimate of the largest area of the MSWLF unit ever requiring a final cover at any time during the active life; 3. An estimate of the maximum inventory of wastes ever on-site over the active life of the landfill facility; and 4. A schedule for completing all activities necessary to satisfy the closure criteria in Sec.258.60. The owner or operator must notify the Director of the Solid Waste Agency that a closure plan has been prepared and placed in the operating record by the date of the first receipt of solid waste. Prior to beginning closure of each MSWLF unit, the owner or operator must notify the Director of the Solid Waste Agency that a notice of intent to close the unit has been placed in the operating record. The owner or operator must begin closure activities of each MSWLF unit no later than 30 days after the date on which the MSWLF unit receives the known final receipt of wastes or, if the MSWLF unit has remaining capacity and there is a reasonable likelihood that the MSWLF unit will receive additional wastes, no later than one year after the most recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be granted by the Director of the Solid Waste Agency, if the Tribe has an EPA approved solid waste program, and if the owner or operator demonstrates that the MSWLF unit has the capacity to receive additional wastes and the owner or operator has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the unclosed MSWLF unit. The owner or operator of all MSWLF units must complete closure activities of each MSWLF unit in accordance with the closure plan within 180 days following the beginning of closure as specified in 40 CFR Sec. 258.60(f). Extensions of the closure period may be granted by the Director of the Solid Waste Agency, if the Tribe has an EPA approved solid waste program, and if the owner or operator demonstrates that closure will, of necessity, take longer than 180 days and he has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed MSWLF unit. Following closure of each MSWLF unit, the owner or operator must supply the Director of the Solid Waste Agency with a certification signed by an independent registered professional engineer that verifies that closure has been completed in accordance with the closure plan, and shall place such certification in the operating record. The Board shall take whatever action is reasonably necessary in perpetuity to notify any potential users or purchasers of the landfill facility property that the land has been used as a landfill facility and that its use is restricted under 40 CFR Sec. 258.61(c)(3). Post- closure use of the property shall not disturb the integrity of the site, final cover, liner(s) or monitoring systems, unless necessary to comply with requirements under 40 CFR Part 258. CHAPTER TWELVE--POST-CLOSURE CARE REQUIREMENTS FOR MSWLFs Sec. 12.101 Post-Closure Care Requirements. A. Following closure of each MSWLF unit, the owner or operator must conduct post-closure care. Post-closure care must be conducted for thirty (30) years except as provided under paragraph B of this section, and must include the following: 1. Maintaining the integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of settlement, subsidence, erosion, or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover; and 2. Maintaining and operating the leachate collection system in accordance with the requirements in 40 CFR Sec. 258.40. The Director of the Solid Waste Agency may allow the owner or operator to stop managing leachate if the owner or operator demonstrates that leachate no longer poses a threat to human health and the environment; 3. Monitoring the ground water in accordance with the requirements of subpart E of 40 CFR Part 258 and maintaining the groundwater monitoring system; and 4. Maintaining and operating the gas monitoring system in accordance with the requirements of 40 CFR Sec. 258.23. B. The length of the post-closure care period may be: 1. Decreased by the Director of the Solid Waste Agency if the Tribe has an EPA approved solid waste program, and if the owner or operator demonstrates to the satisfaction of the Director that the reduced period is sufficient to protect human health and the environment; or 2. Increased by the Director of the Solid Waste Agency if the Director determines that the lengthened period is necessary to protect human health and the environment. C. The owner or operator of a MSWLF units must prepare a written post-closure plan that includes, at a minimum, the following information: 1. A description of the monitoring and maintenance activities required in 40 CFR Sec. 258.61(a) for each MSWLF unit, and the frequency at which these activities will be performed; and 2. The name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and 3. A description of the planned uses of the property during the post-closure period. Post-closure use of the property shall not disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements in 40 CFR Part 258. The Director of the Solid Waste Agency may, if the Tribe has an EPA approved solid waste plan, approve any other disturbance if the owner or operator demonstrates that disturbance of the final cover, liner or other component of the containment system, including any removal of waste, will not increase the potential threat to human health or the environment. D. The owner or operator must notify the Director of the Solid Waste Agency that a post-closure plan has been prepared and placed in the operating record by the initial receipt of waste. E. Following completion of the post-closure care period for each MSWLF unit, the owner or operator must supply the Director of the Solid Waste Agency with a certification signed by an independent registered professional engineer which verifies that all post-closure care has been completed in accordance with the post-closure plan, and shall place such certification in the operating record. CHAPTER THIRTEEN--FINANCIAL ASSURANCE REQUIREMENTS FOR CLOSURE, POST-CLOSURE AND CORRECTIVE ACTION Sec. 13.101 Financial Assurance Requirements. Owners or operators of MSWLFs on the Reservation are required to comply with the financial assurance criteria under Subpart G of 40 CFR Part 258, which are incorporated herein, and contained at 40 CFR Sec. 258.71 (Financial Assurance For Closure); 40 CFR Sec. 258.72 (Financial Assurance For Post-Closure Care); 40 CFR Sec. 258.73 (Financial Assurance For Corrective Action); and 40 CFR Sec. 258.74 (Allowable Mechanisms To Demonstrate Financial Assurance). A. Financial Assurance for Closure. The owner or operator must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of each MSWLF unit ever requiring a final cover as required under 40 CFR Sec. 258.60 at any time during the active life in accordance with the closure plan. The owner or operator must notify the Director of the Solid Waste Agency that the estimate has been placed in the operating record. The cost estimate must equal the cost of closing the largest area of a MSWLF unit ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan. During the active life of the MSWLF unit, the owner or operator must annually adjust the closure cost estimate for inflation. The owner or operator must increase the closure cost estimate and the amount of financial assurance provided, if changes to the closure plan or MSWLF unit conditions increase the maximum cost of closure at any time during the remaining active life. The owner or operator may reduce the closure cost estimate and the amount of financial assurance provided under Section B herein, if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the MSWLF unit. The owner or operator must notify the State Director that the justification for the reduction of the closure cost estimate and the amount of financial assurance has been placed in the operating record. The owner or operator of each MSWLF unit must establish financial assurance for closure of the MSWLF unit in compliance with 40 CFR Sec. 258.74. The owner or operator must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with 40 CFR Sec. 258.60(h) and (i). B. Financial Assurance for Post-Closure Care. The owner or operator must have a detailed estimate, in current dollars, of the cost of hiring a third party to conduct post- closure care for the MSWLF unit in compliance with the post-closure plan developed under 40 CFR Sec. 258.61. The post-closure cost estimate used to demonstrate financial assurance must account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post- closure care period. The owner or operator must notify the Director of the Solid Waste Agency that the estimate has been placed in the operating record. The cost estimate for post-closure care must be based on the most expensive costs of post-closure care during the post-closure care period. During the active life of the MSWLF unit and during the post-closure care period, the owner or operator must annually adjust the post-closure cost estimate for inflation. The owner or operator must increase the post-closure care cost estimate and the amount of financial assurance provided if changes in the post-closure plan or MSWLF unit conditions increase the maximum costs of post-closure care. The owner or operator may reduce the post-closure cost estimate and the amount of financial assurance provided if the cost estimate exceeds the maximum costs of the post- closure care remaining over the post-closure care period. The owner or operator must notify the Director of the Solid Waste Agency that the justification for the reduction of the post-closure cost estimate and the amount of financial assurance has been placed in the operating record. The owner or operator of each MSWLF unit must establish, in a manner that complies with 40 CFR Sec. 258.74, financial assurance for the costs of post-closure care as required under 40 CFR Sec. 258.61. The owner or operator must provide continuous coverage and financial assurance for post-closure care until released from financial assurance requirements for post-closure care by demonstrating compliance with 40 CFR Sec. 258.61(e). C. Financial Assurance for Corrective Action. An owner or operator of a MSWLF unit required to undertake a corrective action program under 40 CFR Sec. 258.58 must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under 40 CFR Sec. 258.58. The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator must notify the Director of the Solid Waste Agency that the estimate has been placed in the operating record. The owner or operator must annually adjust the estimate for inflation until the corrective action program is completed in accordance with 40 CFR Sec. 258.58(f). The owner or operator must increase the corrective action cost estimate and the amount of financial assurance provided, if changes in the corrective action program or MSWLF unit conditions increase the maximum costs of corrective action. The owner or operator may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided, if the cost estimate exceeds the maximum remaining costs of corrective action. The owner or operator must notify the Director of the Solid Waste Agency that the justification for any reduction of the corrective action cost estimate and the amount of financial assurance has been placed in the operating record. The owner or operator of each MSWLF unit required to undertake a correction action program under 40 CFR Sec. 258.58 must establish, in a manner in accordance with 40 CFR Sec. 258.74, financial assurance for the most recent corrective action program. The owner or operator must provide continuous coverage and financial assurance for corrective action until released from the financial assurance requirements for correction action by demonstrating compliance with 40 CFR Sec. 258.58(f) and (g). D. Allowable Financial Assurance Mechanisms. 40 CFR Sec. 258.74 requires that an owner or operator of a MSWLF unit provide financial assurance to ensure that funds necessary to meet the costs of closure, post-closure care and corrective action for known releases will be available in a timely fashion when they are needed. There are four mechanisms available to provide financial assurance, including a trust fund; a surety bond; a letter of credit, or an insurance policy, or a combination of the four mechanisms. Any mechanism(s) that is used by an owner or operator must comply with all of the criteria in 40 CFR Sec. 258.74, which is incorporated by reference herein, and must be legally valid, binding and enforceable under State, Federal, and Tribal law. The financial assurance mechanism(s) must be obtained by the owner or operator before the initial receipt of waste in the case of closure and post-closure care cost estimates; and no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of 40 CFR Sec. 258.58, and maintained as required by 40 CFR Secs. 258.71-74. The Board must approve the actual financial assurance mechanism(s) and financial assurance agreements that is provided by the owner or operator. The Board may also require in its discretion, in addition to the criteria for financial assurance under 40 CFR Part 258, that an owner or operator provide financial assurance for corrective action for other than known releases as a condition for issuing a MSWLF permit. The Board shall also require that liability and property damage insurance coverage be provided by an owner or operator, for claims arising from personal injury or property damage, including any claims arising from releases from a MSWLF unit. If a trust fund mechanism is used, the trustee must be an entity who has the authority to act as a trustee, and whose trust operations are regulated and examined by a Federal agency. Trust fund payments must be made as specified in 40 CFR Sec. 258.74. criteria. The Board must approve the terms of any trust agreement which is to be used as a financial assurance mechanism. The trust agreement shall be irrevocable. Trust funds shall only be released to reimburse the owner or operator for closure, post-closure and corrective action costs actually incurred, but only if sufficient funds remain in the trust to cover the remaining costs. If any surety bond is used, the surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury. If any letter of credit is used, the issuing institution must be an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a Federal agency. CHAPTER FOURTEEN--PROHIBITED MATERIALS AND SPECIAL WASTES Sec. 14.101 Prohibited Materials. The following solid waste materials shall not be accepted at any MSWLF on the Reservation under any conditions: (1) Radioactive wastes. (2) All regulated hazardous wastes as defined herein. (3) Unregulated small quantity generator hazardous wastes. (4) Infectious biomedical wastes which includes human tissue or human anatomical remains. (5) Animals or bedding exposed to infective agents. (6) Sharps, needles and lancets which have not been contained for disposal in leak-proof, rigid, puncture-resistant containers such as cartons or metal cans which are taped closed or tightly lidded to preclude loss of contents under sever compaction conditions. (7) Bulk quantities of infectious-type wastes including blood, blood products and body fluids. (8) Any materials containing friable asbestos waste from building demolition or cleaning, and any friable asbestos materials. (9) Sewage or sewage sludge wastes. (10) Bulk liquids of any kind. (11) Polychlorinated biphenyls (PCBs). (12) Car batteries. (13) Used oil. (14) 55 gallon drums. (15) Explosives. (16) Tires. (17) Oil or gas exploration wastes. The Board may prohibit the disposal of other solid wastes at MSWLFs on the Reservation as it deems necessary in its discretion, under rules and regulations to be adopted by the Board. The Board shall issue rules and regulations governing the disposal or prohibition of disposal of other solid wastes not listed herein, including but not limited to, ashes and powders, and mineral wastes and soils. The Board shall develop rules and regulations for special wastes, which require special handling, treatment and disposal. CHAPTER FIFTEEN--RECYCLING AND HOUSEHOLD HAZARDOUS WASTES Sec. 15.101 Recycling. Tribal policy shall be that solid wastes which are reusable shall be recycled if economically feasible. The Board shall include a study regarding the recycling of solid wastes on the Reservation, as part of the Tribe's Solid Waste Management Plan. Such study shall include an analysis of technological and economically feasible systems for the collection, separation, containerization, and marketing of solid wastes that are recyclable. The study shall identify potential markets for recyclable solid wastes. If recycling is economically feasible, the Board may issue rules and regulations for the recycling of solid wastes on the Reservation. Sec. 15.102 Household Hazardous Wastes. The Board shall include a study regarding the disposal of household hazardous wastes on the Reservation, as part of the Tribe's Solid Waste Management Plan. Such study shall include an analysis of the economic feasibility of the separate collection of household hazardous wastes, and disposal of household hazardous wastes at duly authorized facilities other than at a MSWLF on the Reservation. If economically feasible, the Board may issue rules and regulations for the collection and lawful disposal of household hazardous wastes generated on the Reservation other than at a MSWLF on the Reservation. CHAPTER SIXTEEN--INJUNCTIVE RELIEF Sec. 16.101 Temporary Restraining Orders And Injunctive Relief. A. If the Director of the Solid Waste Agency has reason to believe that any person is in violation of any provision of this Code, any rule or regulation promulgated under this Code, any condition of any permit issued under this Code, or that any person is creating an imminent and substantial endangerment to the public health or the environment, the Director of the Solid Waste Agency through the Tribe's Attorney General, may on behalf of the Tribe, file an action in Tribal Court requesting a temporary restraining order, a preliminary injunction or any other relief necessary to protect the public health or the environment. No security for the issuance of any temporary restraining order or preliminary injunction shall be required. B. No temporary restraining order shall be issued without prior notice to the person committing the alleged violation(s), unless it clearly appears that immediate and improbably injury, loss, or damage will result to the public health or the environment. Each temporary restraining order shall clearly describe the act or acts that are enjoined, and shall specifically define the injury and state why it is improbable, and why the order was entered without notice. Any temporary restraining order shall be served upon the person(s) committing the alleged violation(s), along with the complaint and any other pleadings. Every temporary restraining order shall be binding upon the parties named in the order, and their officers, agents, servants, employees, and attorneys, including any other persons who are in active concert or participation with them who have notice of the order. C. No preliminary or permanent injunction shall be issued without notice to the adverse party and a hearing. An application for a preliminary injunction shall be set for a hearing at the earliest possible time, and shall take precedence over all matters except older matters of the same character. For good cause shown, the Tribal Court may extend the temporary restraining order until the hearing on the preliminary injunction. D. The right of the Director of the Solid Waste Agency to seek injunctive relief under this Chapter is in addition to any other right that he has to enforce compliance with any of the provisions of this Code, rules or regulations promulgated thereunder, or conditions of permits issued under this Code. CHAPTER SEVENTEEN--ENFORCEMENT PROGRAM FOR SOLID WASTE PERMITTEES Sec. 17.101 Compliance, Abatement And Remedial Action Orders. A. Any permittee who constructs and/or operates a MSWLF on the Reservation, or who collects and transports solid waste on the Reservation, who violates any of the conditions in his permit; or who violates any part of this Code; or any rule or regulation or guidance document adopted under this Code; or any relevant Tribal environmental criteria or standards for solid waste permittees; or any other Tribal or Federal environmental law, shall upon order of the Director of the Solid Waste Agency, cease and desist from any improper action or violation(s), clean up any solid waste, abate any hazard, pollution, or nuisance, and otherwise comply with any directive, or corrective or remedial action order issued by the Director of the Solid Waste Agency. The Director of the Solid Waste Agency may issue an order requiring compliance immediately or within a specified period of time. A compliance order shall state with reasonable specificity the nature of the violation, a time for compliance, if applicable, and the right to a hearing before the Board. A compliance order shall be hand delivered to the alleged violator. An order issued by the Director of the Solid Waste Agency shall become final unless an appeal is filed with the Board for a hearing within thirty days of receipt of the order. A permittee shall have all procedural rights at any administrative hearing held before the Board under Chapter Eighteen, including the right to judicial review granted under this Chapter. The Director of the Solid Waste Agency through the Tribe's Attorney General may file an action in Tribal Court to enforce final orders issued under this section. B. Imminent Harm And Remedial Actions By The Board. If any of the circumstances set forth hereinabove pose an imminent harm to life or health, the Board may expend any available monies to perform any cleanup, abatement, or remedial work required. C. Remedial Actions By The Board. If any of the circumstances set forth hereinabove do not pose an imminent threat to life or health, and the Director of the Solid Waste Agency has ordered any clean up, abatement, corrective or remedial work, and the permittee fails to perform such work as ordered, the Board is authorized, with the approval of the Tribal Council, to perform such work and expend monies for such purpose, as it deems reasonably necessary for the public health and safety. D. Liability Of Solid Waste Permittees for Remedial Costs. If solid waste or hazardous waste is cleaned up, the effects thereof abated, or any other necessary remedial action is taken by the Board under this Chapter, the permittee who committed such violation(s), shall be liable to the Tribe for the reasonable costs actually incurred in cleaning up any solid waste or hazardous waste, abating the effects thereof, or taking other corrective or remedial action, including all damages to the natural resources of the Tribe or its members. The amount of such costs shall be recoverable by the Tribe in a civil action brought by the Director of the Solid Waste Agency through the Tribe's Attorney General filed in the Tribal Court, together with the costs of suit, including reasonable attorney's fees. Any judgment ordering the payment of these costs to the Tribe will bear interest at the rate of ten percent (10%) per annum. Sec. 17.102 Compliance With Permits. The Director of the Solid Waste Agency may develop a compliance schedule for any MSWLF owner/operator or solid waste transporter who is not in compliance with any permit condition, or any solid waste criteria under this Code, or its rules or regulations, or Guidance Document. The compliance schedule shall assure that diligent progress shall be made by such permittee to bring him into compliance within a specified period of time. If any MSWLF owner/operator or solid waste transporter is not in compliance within the period of time specified, the Director of the Solid Waste Agency may file a written Statement of Charges with the Board under Sec. 17.103 herein, and the Board, after a hearing, may subject such permittee to a civil penalty of up to Fifteen Thousand Dollars ($15,000), for each day each violation(s) continues uncorrected, or may, if such violation(s) continues, revoke, suspend, or modify the permit until such time as the violation(s) are remedied. Sec. 17.103 Civil Penalties And Revocation, Suspension, Or Modification Of Permit. A. Statement of Charges. A hearing before the Board to determine a permittee's liability for civil penalties under Sec. 17.102, and/or whether a permit should be revoked, suspended, or modified may be initiated by the Director of the Solid Waste Agency by filing a written Statement of Charges with the Board that specifically sets forth the acts, violations, or omissions that the permittee is charged with, and specifying those parts of this Code, orders, permit conditions, rules or regulations, or guidance documents that the permittee is alleged to have violated. The Statement of Charges and all accompanying documents shall forthwith thereafter be hand-delivered to the permittee. B. Grounds for suspension, revocation, or modification. After a hearing, any solid waste permit issued by the Board may be suspended, modified, or revoked by the Board, but only for cause, including the following: (1) Any violation of any condition or requirement contained in the permit or this Code, any rules and regulations promulgated thereunder, orders, or guidance document; or (2) Obtaining any permit by misrepresentation or failing to disclose fully all relevant facts; or (3) Any violation of any Federal or Tribal environmental law. C. Notice of Hearing. The Statement of Charges shall be accompanied by a notice advising the permittee of a date for a hearing before the Board, which shall not be earlier than ninety (90) days after personal delivery of the Statement of Charges. D. Answer. The permittee shall file an Answer of Defense with the Board within thirty (30) days after service of the Statement of Charges, in which he shall admit or deny such charges, including the allegation of any defenses, mitigating circumstances, or any other objections or responses. E. The Hearing. Any hearing before the Board under this Chapter shall be conducted in accordance with all of the procedural rights granted in Chapter Eighteen herein. F. The Decision. Within thirty (30) days after the case is submitted for decision, the Board shall issue its final decision. Cases shall be decided by a concurrence of at least two members of the Board. The final decision shall be in writing, filed with the Board, and shall contain findings of fact, a determination of the issues presented, an assessment of civil penalties, if any, a determination of whether such permit shall be revoked, suspended or modified, if applicable, and an assessment of costs and reasonable attorney's fees. A copy of the decision shall be forthwith delivered by the Director of the Solid Waste Agency to the permittee, and to each member of the Tribal Council. Copies of the decision shall be mailed by the Board to all other parties. G. Judicial Review. An adverse party aggrieved by a final decision of the Board is entitled to judicial review thereof by the Tribal Court. A petition for review shall be filed in the Tribal Court within thirty (30) days after the filing of the final decision with the Board. The Tribe, acting by the Tribal Council, shall have standing to appeal any final decision of the Board, and may likewise appeal such final decision by timely filing a petition for review within thirty (30) days after filing of the final decision with the Board. Failure to timely file a petition for review shall be deemed a waiver of the right to appeal to the Tribal Court. A final decision is enforceable by filing a civil action in Tribal Court by the Director of the Solid Waste Agency through the Tribe's Attorney General. The Tribal Court shall, upon the petition of an affected party, conduct a review of the record of the proceedings of the Board but shall not take new evidence; it may modify or reverse a decision or action of the Board only where such action or decision is contrary to the law, is not supported by the evidence, or is clearly arbitrary and capricious. The Board, upon request of the Tribal Court, shall provide to the Tribal Court a certified copy of all pleadings, documents, records, transcripts, and all other evidence that formed the basis for any action or decision as to which an affected party seeks review. The filing of a petition for review shall not operate as a stay of the Board's final decision, but the Tribal Court has the authority to issue a stay upon such terms as it deems appropriate. H. Sovereign Immunity. The Tribal Council hereby waives the sovereign immunity of the Board for the express and sole purpose of allowing review of the Board's decision by the Tribal Court, provided that such waiver is made only to the extent necessary to subject the Board to suit for the sole purpose of declaring and adjudging rights and obligations under Tribal or Federal laws. This waiver is strictly limited, and specifically does not waive the Tribe's or the Board's immunity from suit for monetary damages or otherwise, and specifically does not waive the sovereign immunity of the Tribe, the Tribal Council, the Board, its members, or any officer, employee or agent of the Tribe. I. Remedies Not Exclusive. The rights of the Tribe with respect to a permittee under this Chapter, including the right to issue compliance orders, recover civil penalties, or civil damages for clean up, abatement, corrective or remedial costs against a permittee, or revoke, suspend, or modify a permit, are not intended to be exclusive, and the Tribe reserves all other legal rights which it otherwise has against any permittee, including the right to seek injunctive relief under Chapter Sixteen, or seek relief in any court of competent jurisdiction. CHAPTER EIGHTEEN--BOARD ADMINISTRATIVE HEARINGS Sec. 18.101 Procedural Rights. A. Discovery. Prior to any administrative hearing held before the Board under Chapter Seventeen of the Code, any party, upon written request made to any other party prior to the hearing, is entitled to (A) obtain the names and addresses of witnesses to the extent known to the other party including but not limited to those intended to be called to testify at the hearing; and (B) inspect and make a copy of any relevant documents in the possession or custody or under the control of the other party, including but not limited to statements made by any person pertaining to the subject matter of the proceeding, and investigative or expert reports pertaining to the subject matter of the proceeding. Nothing in this Section shall authorize the inspection or copying of any writing that is privileged from disclosure by law or otherwise made confidential or protected as attorney's work product or otherwise. Before the hearing has commenced, the Board shall issue and have served subpoenas and subpoenas duces tecum at the request of any party for the attendance of witness or production of documents at the hearing. Any subpoenas issued by the Board shall be enforceable under the Tribe's civil laws. B. Witnesses And Evidence. Oral evidence shall be taken only on oath or affirmation. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination, to impeach any witness regardless of which party first called him to testify, and to rebut the evidence against him. Any party who does not testify in his own behalf may be called and examined as if under cross-examination. All proceedings shall be recorded and preserved as a record. The hearing need not be conducted according to the technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons may rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule that might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used solely for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding, unless it would be admissible over objection in civil actions. Official notice may be taken at the hearing of any generally accepted technical or scientific matters. Parties present at the hearing shall be informed of any matters to be noticed, and those matters shall be noted in the record. Any party shall be given a reasonable opportunity on request to refute the officially noticed matters by additional evidence. CHAPTER NINETEEN--COMPLIANCE MONITORING Sec. 19.101 Compliance Monitoring. The Director of the Solid Waste Agency shall have the right to obtain any and all information from any permittee under the Code, including but not limited to records and technical reports or studies, whether contained in the permittee's operating record or not, which may be relevant to determine whether a permittee is in compliance with all Tribal solid waste requirements, including but not limited to the Code, any condition contained in a permit, any rules or regulations promulgated under the Code, any guidance documents, any orders issued pursuant to the Code, or any Federal or Tribal environmental laws. The Director of the Solid Waste Agency, and any of his authorized agents or employees, shall have the right (1) to enter and inspect any site or premise subject to any permit program, or in which any records relevant to the operation of regulated facilities or activities are kept required by the provisions of this Code, and (2) to conduct sampling, monitoring, or testing, or review and obtain copies of any records, to determine whether a permittee is in compliance with all Tribal solid waste requirements, including but not limited to the Code, any condition contained in a permit, any rules or regulations promulgated under the Code, any guidance documents, any orders issued pursuant to the Code, or any Federal or Tribal environmental laws. All sampling, monitoring or testing by the Solid Waste Agency shall incorporate chain of custody and quality assurance procedures to ensure that the results of any sampling, monitoring or testing shall be admissible as evidence in any proceeding before the Board or Tribal Court. CHAPTER TWENTY--PUBLIC PARTICIPATION AND HEARINGS Sec. 20.101 Public Participation And Hearings. A. The Board shall allow public participation and shall hold one or more informal public hearings, including but not limited to the following matters prior to taking any formal action: 1. The adoption of the Tribe's Solid Waste Management Plan; 2. The issuance of any rules or regulations under the Tribe's Solid Waste Management Code, including any guidance documents, as proposed by the Director of the Solid Waste Agency; 3. The approval of any site location for a new MSWLF; 4. The issuance of any permits for the construction and/or operation of a MSWLF, or for the collection and transportation of solid waste; 5. The suspension of any groundwater monitoring requirements under 40 CFR Sec. 258.50; 6. The assessment of any corrective measures and selection of remedies which may be necessary under 40 CFR Secs. 258.56 and 258.57; 7. The approval of any covenant not to sue or any settlement of any claim against any permittee under the Code; and 8. Any other matters which the Board deems appropriate for public participation and review, or which may be required under 40 CFR Part 239, or this Code. The Board shall schedule such hearings at a convenient location, and give reasonable advance notice of the date, time and subject matter(s) of such hearings, by publication in the newspaper most widely circulated on the Reservation. Sixty (60) days advance notice is required for the issuance of any MSWLF permits. There shall be a reasonable opportunity for anyone to comment at such hearings, and to present any relevant information. Sec. 20.102 Right To Intervene. In any administrative hearing before the Board, or civil action filed in the Tribal Court as authorized under the Code, any person shall be allowed to intervene under the same conditions as allowed under Rule 24(a)(2), of the Federal Rules of Civil Procedure, which provides for intervention as a matter of right only when the applicant claims an interest relating to the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest. The Tribe may not defeat such right of intervention on the basis that the applicant's interest is adequately represented by existing parties. Sec. 20.103 Actions On Public Complaints. If the Director of the Solid Waste Agency receives a credible complaint concerning a MSWLF owner/operator or solid waste transporter, giving rise to reasonable grounds that the Code, or any of its rules or regulations, permit conditions, or environmental standards, has or is being violated, the Director of the Solid Waste Agency shall investigate such complaint. The Director of the Solid Waste Agency shall thereafter take such enforcement action as he deems appropriate. CHAPTER TWENTY-ONE--INDEMNIFICATION Sec. 21.101 Indemnification. Any person, vendor or permittee who contracts with the Tribe to collect, transport, distribute, or dispose of solid waste, shall indemnify the Tribe, or any of its members, officers, agents or employees, from any claims and liabilities of any nature whatsoever, including third party suits for personal injury, death, environmental cleanup, or property damage, which are based upon any violations of any of the provisions of the Code; rules or regulations promulgated thereunder; guidance documents; environmental solid waste standards; any orders or permit conditions; or are based upon violations of any other Federal or Tribal environmental laws, and which claims or liabilities are not caused by the Tribe, or any of its members, officers, agents or employees. CHAPTER TWENTY-TWO--SEVERANCE, MODIFICATIONS, AND APPLICABILITY OF PART 258 CRITERIA Sec. 22.101 Severability. If any provisions of the Code, or any application of its provisions to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remaining provisions of the Code, shall not be affected thereby. Sec. 22.102 Modifications and Applicability of Part 258 Criteria. The Code incorporates by reference all of the Criteria contained in 40 CFR Part 258. If any part of 40 CFR Part 258 is modified, any modifications are automatically incorporated by reference and become part of this Code, and supercede any of the provisions that were modified. If any of the Part 258 Criteria are not actually restated in this Code they are nevertheless incorporated by reference and are applicable. If the EPA approves the Tribe's solid waste program, then the Tribe has all of the flexibility granted to it under the Part 258 Criteria, whether or not such flexibility is specifically restated in the Code. Any specific provisions of the Code which are more stringent than the Part 258 Criteria, are applicable and controlling. CHAPTER TWENTY-THREE--DEFINITIONS Sec. 23.101 Definitions. Unless otherwise provided or the context requires another definition, the definitions set forth in this Chapter shall apply to the terms used throughout this Code. Additional definitions sometimes appear in the specific sections to which they apply. Active Life. "Active life" means the period of operation beginning with the initial receipt of solid waste and ending at completion of closure activities in accordance with 40 CFR Sec. 258.60. Active Portion. "Active portion" means that part of a facility or unit that has received or is receiving wastes and that has not been closed in accordance with 40 CFR Sec. 258.60. Administrator. "Administrator" means the Administrator of the United States Environmental Protection Agency, or any authorized representative. Approved EPA Solid Waste Disposal Program. "Approved EPA Solid Waste Disposal Program" means a Tribal municipal solid waste landfill disposal program, including a system of prior approval and permit conditions, that has been determined to be adequate by EPA under 40 CFR Part 239, for the regulation of solid waste as required under 40 CFR Part 258. EPA approval of a Tribe's solid waste disposal program, allows a Tribe the flexibility to approve alternate criteria for the design and regulation of municipal solid waste landfills. Approved Tribe. "Approved Tribe" means a Tribe whose municipal solid waste landfill disposal program and system of prior approval and permit conditions has been determined to be adequate by EPA under 40 CFR Part 239 and Part 258. Aquifer. "Aquifer" means a geological formation, group of formations, or portion of a formation capable of yielding significant quantities of ground water to wells or springs. Background. "Background" means the concentrations or measures of constituents or parameters in air, soil, or water that has not been affected by constituents or leachate from the solid waste facility being monitored. Background Monitoring Point. "Background monitoring point" means a well, device, or location specified in the permit conditions at which monitoring for background water quality or background soil quality is conducted. BIA. "BIA" means the Bureau of Indian Affairs, Department of the Interior, United States of America. Board. "Board" means the Tribe's Environmental Protection Board. The Board issues permits for the construction and operation of MSWLFs on the Reservation, or for the collection and transportation of solid waste; holds public and administrative hearings under the Code; and performs those duties delegated to it under the Code. Closure. "Closure" means the termination of the receiving, handling, recycling, treatment, composting, or disposal of solid waste at a solid waste facility, and includes all operations necessary to prepare the facility for post-closure maintenance. Code. "Code" means the ________ Tribe's Solid Waste Management Code. The Code incorporates by reference, 40 CFR Part 258, which contains the Federal criteria for MSWLFs. Collection. "Collection" means the act of collecting solid waste or hazardous waste at the place of generation by an approved collection agent and does not mean "removal". Collection Vehicle or Equipment. "Collection vehicle or equipment" means any vehicle or equipment used in the collection of solid waste. Commercial Solid Waste. "Commercial solid waste" means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrial wastes. Construction. "Construction" means the erection or building of new structures and the acquisition, replacement, expansion, remodeling, alteration, modernization, or extension of existing structures. Cover Material. "Cover material" means soil or other material suitable for use in covering compacted solid waste in a sanitary landfill. A material is suitable for use as a cover material if, when properly used, it will prevent: (1) the propagation, harborage, or attraction of vectors; (2) the progress of fires; (3) the escape of odor; (4) excess infiltration of surface water runoff; and (5) erosion. Daily Cover. "Daily cover" means cover material spread and compacted on the entire surface of the active face of a sanitary landfill at the end of each operating day. 40 CFR Sec. 258.21 requires that solid waste must be covered with six inches of earthen material at the end of each operating day. If the Tribe has an EPA approved solid waste program, the Director of the Solid Waste Agency may approve alternative materials of an alternate thickness. Director. "Director" means the Director of the Tribe's Solid Waste Agency. The Director is the chief administrative officer of the Tribe's Solid Waste Agency which regulates and monitors the Tribe's municipal solid waste disposal and permit program as is required under 40 CFR Part 258 and 40 CFR Part 239. Disposal. "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including surface waters or groundwaters. Existing MSWLF Unit. "Existing MSWLF unit" means any municipal solid waste landfill unit that is receiving solid waste. Also, see "new MSWLF unit". Facility. "Facility" means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of solid waste. Fault. "Fault" means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side. Financial Mechanism. "Financial mechanism" means a trust fund or other equivalent financial arrangement acceptable to the Board to provide the financial assurances required by the Code for meeting the costs of closure, post-closure, and corrective action, if applicable. Floodplain. "Floodplain" means land that would be inundated with flood water as a result of the occurrence of a 100-year flood. Fomite. "Fomite" means any substance that may harbor or transmit pathogenic organisms. Groundwater. "Groundwater" means water below the land surface in a zone of saturation. Guidance Document. "Guidance document" means a document prepared by the Director of the Solid Waste Agency that supplements criteria under the Code. A guidance document may provide specific technical direction regarding the manner in which an owner or operator shall comply with the Part 258 Criteria. Guidance documents may be referred to or attached as conditions to permits. Such technical direction must either conform to the Part 258 Criteria, or be more stringent. A guidance document may also provide direction as to how the Director of the Solid Waste Agency interprets the Tribe's solid waste permit program, consistent with Tribal laws and the Code. Hazardous Waste. "Hazardous waste" means any waste substance, material, smoke, gas, particulate matter, or combination thereof that: (1) because of its quantity, concentration, or physical, chemical, or infectious characteristics, may either cause or significantly contribute to an increase in mortality or serious irreversible or incapacitating illness, or pose a substantial present or potential hazard to human health, living organisms, or the environment when improperly handled, treated, stored, transported, or disposed of; or (2) is specifically defined to be hazardous or toxic by the Federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or the Resource Conservation and Recovery Act of 1976, as either act may be amended from time to time, and by any regulations promulgated thereunder, including but not limited to any substance, material, smoke, gas, particulate matter, or combination thereof containing asbestos, petroleum or its byproducts, or polychlorinated biphenyls (PCBS"); or (3) is hazardous, toxic, ignitable, reactive, or corrosive, and that is defined and regulated as such by the Tribe or the United States of America. Holocene. "Holocene" means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the Present. Holocene Fault. "Holocene Fault" means a fault that is or has been active during the last 11,000 years. Household Hazardous Waste. "Household hazardous waste" means hazardous waste discarded by households. Household Waste. "Household waste" means any solid waste (including garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas). Implementation Schedule. "Implementation schedule" means a schedule that indicates approximate dates for the orderly, timely implementation of any Tribal solid waste disposal plans, policies or programs; and also includes approximate dates for the establishment, expansion, or closure of any MSWLFs on the Reservation. Indian Lands or Indian Country. "Indian lands or Indian country" means: (1) All lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running throughout the reservation; (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of the State; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same. Indian Tribe or Tribe. "Indian Tribe" or "Tribe" means any Indian tribe, band, nation, or community recognized by the Secretary of the Interior and exercising substantial governmental duties and powers within Indian country. Industrial Solid Waste. "Industrial solid waste" means solid waste generated by manufacturing or industrial processes that is not a regulated hazardous waste under Subtitle C of RCRA. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: Electric power generation; fertilizer/agricultural chemicals; food and related products/by- products; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mineral wastes, or oil and gas wastes. Infectious Waste. "Infectious waste" means: (1) Laboratory wastes, including but not limited to cultures of etiologic agents, which pose a substantial threat to health due to their volume and virulence. (2) Pathologic specimens, including but not limited to human or animal tissues, blood elements, excreta, and secretions that contain etiologic agents, and attendant disposable fomites. (3) Surgical specimens, including but not limited to human or animal parts and tissues removed surgically, or at autopsy, which in the opinion of the attending physician or veterinarian, contain etiologic agents and attendant disposable fomites. (4) Human dialysis waste materials, including but not limited to arterial lines and dialysate membranes. (5) Carcasses of animals infected with etiologic agents that may present a substantial hazard to public health if improperly managed. (6) Equipment, instruments, utensils, or any other material that is likely to transmit etiologic agents. (7) Any other material that is likely to transmit etiologic agents, or presents a significant danger of infection, because it is contaminated with, or may reasonably be expected to be contaminated with, etiologic agents. Karst terrains. "Karst terrains" means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terrains include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys. Lateral Expansion. "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing MSWLF unit. Leachate. "Leachate" means any liquid formed by the drainage of liquid from solid waste or by the percolation or flow of liquid through solid waste, including but not limited to any constituents extracted from the solid waste and dissolved or suspended in the liquid. Lead Agency. "Lead Agency" means the Tribe's Solid Waste Agency which has the legal authority and the oversight responsibilities to regulate and monitor the Tribe's permit program and system of prior approval and conditions to ensure that MSWLFs comply with the Code and the Part 258 Criteria. Liner. "Liner" means a continuous layer of natural or artificial material or a continuous membrane of artificial material installed beneath or on the sides of a solid waste facility which acts as a barrier to vertical or lateral fluid movement. Liquid Waste. "Liquid waste" means any waste material which contains free liquid that is defined by Method 9095 (Paint Filter Liquids Test), as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Pub. No. SW-846). Lithified Earth Material. "Lithified earth material" means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by loose sediments. Lithified earth material does not include man-made materials such as fill, concrete and asphalt or unconsolidated earth materials, soil or regolith lying at or near the earth surface. Lower Explosive Limit. "Lower explosive limit" means the lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at 25 degrees Celsius and atmospheric pressure. Maximum Horizontal Acceleration in Lithified Earth Material. "Maximum horizontal acceleration in lithified earth material" means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a ninety percent or greater probability that the acceleration will not be exceeded in two hundred fifty years, or the maximum expected horizontal acceleration based on a site specific seismic risk assessment. Mining Waste. "Mining waste" means all waste materials (solid, semi-solid, and liquid) from the mining and processing of ores and minerals, including soil, waste rock, and other forms of overburden as well as tailings, slag, and other processed mining wastes. Municipal Solid Waste Landfill Unit or MSWLF. "Municipal solid waste landfill unit" or "MSWLF" means a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined under 40 CFR Sec. 257. A MSWLF unit also may receive, as authorized under the SWDA, other types of RCRA Subtitle D wastes, such as, commercial solid waste, nonhazardous sludge, and industrial solid waste. The Code, however, prohibits the disposal of certain solid wastes in a MSWLF that would otherwise be permitted under the SWDA, such as, the conditionally exempt small quantity hazardous generator waste. A MSWLF may be publicly or privately owned. A MSWLF unit may be a new unit, an existing unit or a lateral expansion. A lateral expansion is the horizontal expansion of the waste boundary of an existing unit. A MSWLF must comply with all of the criteria under this Code. New MSWLF Unit. "New MSWLF unit" means any municipal solid waste landfill unit that has not received waste. Nuisance. "Nuisance" means a condition that occurs as a result of the handling, treatment, composting, or disposal of solid waste, which condition (1) is injurious to human health or is indecent or offensive to the senses and interferes with the comfortable enjoyment of life or property, and (2) affects an entire community or neighborhood or any considerable number of persons. 100-Year Flood. "100-year flood" means a flood that has a one percent chance of being equaled or exceeded or greater chance of recurring in a one-year period based on criteria established by the Director of the Solid Waste Agency. Open Burning. "Open burning" means the combustion of solid waste without: (1) Control of combustion air to maintain adequate temperature for efficient combustion. (2) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and (3) Control of the emission of the combustion products. Open Dump. "Open dump" means any facility or site on the Reservation where solid waste has been disposed of, which is not a sanitary landfill authorized under the Code under 40 CFR Parts 257 or 258. Operator. "Operator" means the person(s) responsible for the overall operation of a MSWLF facility or part of a MSWLF facility. Owner. "Owner" means the person(s) who owns a MSWLF facility or part of a facility. Part 258 Criteria. "Part 258 Criteria" are the environmental criteria contained in 40 CFR Part 258 for the location, operation, design, groundwater monitoring, corrective action, closure, post- closure care, and financial assurance requirements for MSWLFs. These are environmental standards mandated by the Federal Government. Permit. "Permit" means an authorization and license issued under the authority of the Board regulating the collection and transportation of solid waste, or regulating the treatment and disposal of solid waste, including the construction and/or operation of a MSWLF on the Reservation as required under this Code. Permittee. "Permittee" means a person who is authorized and permitted by the Board, to collect and transport solid waste, or construct or operate a MSWLF in compliance with this Code. Permit Documents. "Permit documents" means permit applications, drafts and final MSWLF permits, or other documents that include applicable design and management conditions in accordance with 40 CFR Part 258, and the technical and administrative information used to explain the basis of permit conditions, including applicable guidance documents. Person. "Person" means any individual, trust, firm, association, partnership, Indian Tribe, Tribally chartered corporation or business, political subdivision, government agency, municipality, industry, public or private corporation, any legal entity or private enterprise, and includes members of the Tribe, all other non-member Indians, and all non-Indians. Point of Compliance. "Point of compliance" means a vertical surface located at the hydraulically downgradient limit of a discrete unit at a MSWLF that extends through the uppermost aquifer underlying the facility. Pollution. "Pollution" means the unauthorized disposal of any solid waste or hazardous waste into the air, land, surface water or groundwater. Post-Closure Maintenance. "Post-closure maintenance" means all activities undertaken at a closed MSWLF to maintain the integrity of containment features and to monitor compliance with applicable performance standards s required under this Code. Post-Closure Maintenance Period. "Post-closure maintenance period" means a period of at least thirty (30) years after closure of a MSWLF, or if the Tribe has an EPA approved solid waste program, a period which ends only after the operator demonstrates to the satisfaction of the Director of the Solid Waste Agency that the solid waste contained in such facility no longer poses any threat to human health and the environment. Qualified Groundwater Scientist. "Qualified groundwater scientist" means a scientist or engineer who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by State registration, professional Certifications, or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective-action. Recovery. "Recovery" means the recovery of material, byproducts, or energy from solid waste. Recycling. "Recycling" means the process of sorting, cleansing, treating, and reconstituting solid waste or other discarded material in order to prepare the altered form for use. Regional Administrator. "Regional Administrator" means any one of the ten Regional Administrators of the Environmental Protection Agency. Regulated Hazardous Waste. "Regulated hazardous waste" under the SWDA means a solid waste that is a hazardous waste, as defined in 40 CFR Part 261, that is not excluded from regulation as a hazardous waste under 40 CFR Sec. 261.4(b), or was not generated by a conditionally exempt small quantity generator as defined in 40 CFR Sec. 261.5. Regulated hazardous waste is not allowed to be disposed of at MSWLFs under the SWDA. The Code provides that conditionally exempt small quantity generator hazardous waste is not allowed to be disposed of at MSWLFs on the Reservation, even though such waste is not regulated hazardous waste. This is a more stringent environmental standard than is required under the 258 Criteria. Removal. "Removal" means the act of taking solid waste or hazardous waste from the place of generation either by an approved collection agency or by the owner of the solid waste or hazardous waste. Reservation. "Reservation" or "on the Reservation", or "on or within the Reservation" means the __________ Tribe Indian Reservation, and includes all lands of any kind within the exterior boundaries of the Reservation. Resource Recovery System. "Resource recovery system" means a solid waste management system that provides for collection, separation, recycling, and recovery of solid waste, including disposal of nonrecoverable waste residue. Rules and Regulations. "Rules and Regulations" mean any rules and regulations promulgated by the Board, and adopted by the Tribal Council, regulating the collection, transportation or disposal of solid waste on the Reservation, which will implement, supplement or regulate any provisions of the Code. Run-off. "Run-off" means rainwater, leachate, or other liquid that drains over land from any part of a MSWLF. Run-on. "Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a MSWLF. Sanitary Landfill. "Sanitary landfill" means a disposal facility employing a method of disposing of solid waste on land, without creating nuisances, pollution or hazards to public health or safety, by using methods to confine the solid waste to the smallest practical area, to reduce it to the smallest practical area, to reduce it to the smallest practical volume, and to cover it with a layer of suitable cover material at specific designated intervals. A sanitary landfill by definition must meet all of the Part 258 Criteria. A MSWLF under the Code is a sanitary landfill. Saturated Zone. "Saturated zone" means that part of the earth's crust in which all voids are filled with water. Sewage Sludge. "Sewage sludge" means any residue, excluding grit or screenings, removed from wastewater, whether in a dry, semi-dry, or liquid form. Site-Specific. "Site-specific" means specific to the local site. Sludge. "Sludge" means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plan, or air pollution control facility, exclusive of the treated effluent from a wastewater treatment plant. Solid Waste. "Solid waste" means any garbage, or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. 1342, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923). SWDA. "SWDA" means the Federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and the 1984 Hazardous and Solid Waste Amendments ("HSWA") to RCRA, and more particularly, subchapter IV - State or Regional Solid Waste Plans, SWDA Secs. 4001-4010, 42 U.S.C.A. Secs. 6941-6949(a), which requires that the EPA promulgate criteria for MSWLFs, and which prohibits disposal of solid waste at landfills which do not satisfy such criteria. The 40 CFR Part 258 regulations contain the criteria for MSWLFs, and become generally effective on October 9, 1993, although there are other effective dates under 40 CFR Part 258. Treatment. "Treatment", when used in connection with hazardous waste, means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amendable for recovery, amendable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous. Tribal Council or Council. "Tribal Council" or "Council" means the governing body of the Indian Tribe. Tribal Court. "Tribal Court" means the Tribal Court of the Indian Tribe. Tribe or Tribal. "Tribe" or "Tribal" means or refers to the Indian Tribe. Tribe's Solid Waste Disposal Program. "Tribe's Solid Waste Disposal Program" means all the authorities, activities and procedures under the Code, the Tribe's Waste Management Plan, and any other Tribal laws or regulations that comprise the Tribe's system of permits, and prior approval and conditions for regulating the collection, handling, transportation, and disposal, treatment and storage of solid waste, including all of the location, operation, design, groundwater monitoring, corrective action, closure, post- closure and financial assurance requirements under the Part 258 Criteria for municipal solid waste landfills. Tribe's Solid Waste Management Plan. "Tribe's Solid Waste Management Plan" means the formulation of Tribal policies for all solid waste collection, handling, transportation, disposal, treatment, storage, recycling and resource conservation, on or off the Reservation. Uppermost Aquifer. "Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within a MSWLF's property boundary. Vector. "Vector" means any insect, arthropod, rodent, or other animal capable of transmitting a pathogen from one organism to another, or of disrupting the normal enjoyment of life by adversely affecting the public health and well-being. Waste Management Unit Boundary. "Waste management unit boundary" means a vertical surface located at the hydraulically downgradient limit of the unit. This vertical surface extends down into the uppermost aquifer. ITC-107-46