Statutes of the Pit River Tribe of California
Affirmed by Resolution
No. 03-10-01 dated
Title 15. Natural Resources and Water Code, Chapter 1. Solid Waste Disposal Ordinance
ARTICLE I. SHORT TITLE, FINDINGS AND PURPOSES
SECTION 101. SHORT TITLE
This Ordinance shall be known as the Pit River Tribal Solid Waste Disposal Ordinance.
SECTION 102. FINDINGS
The Tribal Council finds that:
(A) The increasing volume and variety of solid waste and hazardous waste being generated on Tribal lands contributes to land, air and water pollution, to the production of flies, mosquitoes, rodents and litter, to the waste of dwindling natural resources, and to the general deterioration of the environment. It is important to preserve and secure the health, comfort, welfare and safety of the general public by regulating the uncontrolled disposal and illegal dumping of solid waste within the exterior boundaries of the Pit River Tribe.
(B) The people of the Pit River Tribe have a primary interest in the protection and control of the land and other natural resources affected by the improper disposal of solid waste. The improper disposal of solid waste on land is contrary to the historically close relationship between the people of the Pit River Tribe and their land. The quality of such land and other natural resources must be protected to insure the health, economic, aesthetic and cultural well-being of the Pit River people.
(C) Open dumping is particularly harmful to health, contaminates drinking water from underground and surface supplies and pollutes the land, air and water of the Pit River Tribe.
(D) Inadequate and environmentally unsound practices for the disposal or use of solid waste and hazardous waste have created greater amounts of soil, air and water pollution and other problems for public health and the environment on Indian lands.
(E) Indians and non-Indians alike suffer from improper disposal. The Pit River Tribe desires to ensure the health and well being of all people on Indian lands, residents and visitors alike. Pursuant to federal law as determined by the U.S. Supreme Court in such cases as Montana v. United States, 450 U.S. 544 (1981) and reaffirmed in Strate v. A-1 Contractors, 117 S.CT. 1404 (1997), the Pit River Tribe possesses inherent sovereign authority to regulate solid waste disposal that affect fundamental Tribal interests and public health and safety, including when such activities are conducted by non-members of the Tribe on privately owned land within the tribe's Territory.
(F) It is in the best interest of the Pit River Tribe and the residents within the tribe's territory to establish and maintain and comprehensive tribal solid waste management policy, the objectives of which will be to manage and control solid waste and to prohibit the introduction of hazardous waste into Tribal lands in order to protect the health, safety and welfare of tribal members; to preserve the environment; and to provide for the maximum reuse of the resources contained in solid waste.
(G) The Pit River Tribe recognizes the need to promote standards that will protect Indian lands within the exterior boundaries of the Pit River Tribe. The Pit River Tribal Council, as the properly constituted sovereign government of the Pit River Tribe should undertake to regulate and manage the disposal of solid waste. Such protection of Tribal resources is not adequately provided for under existing legislation, and such protection will be furthered by the passage, adoption and implementation of this Ordinance.
SECTION 103. PURPOSES
(A) The purposes of this Ordinance are to:
(1) Protect the health and safety and promote the welfare of the people of the Pit River Tribe and surrounding communities and to protect the environment by establishing minimum standards for disposal of solid waste.
(2) Improve, promote, finance, implement, regulate and enforce environmental standards and criteria, orders and permit conditions, and exercise comprehensive Tribal regulatory authority over all solid waste and hazardous waste disposal matters within the exterior boundaries of the Pit River Tribe;
(3) Protect fundamental Tribal cultural, ceremonial, religious, residential, agricultural, commercial, industrial, forest, fishery, wetlands, riparian and environmentally sensitive lands within the exterior boundaries of the Pit River Tribe; and economic stability of residential
(4) Prevent the deterioration of the environment, standard of living, quality of life, health, safety and welfare of all persons within the exterior boundaries of the Tribe;
(5) Provide and promote Tribal environmental protection and services within the Tribe and to regulate environmental activities under principles of Tribal sovereignty;
(6) Prevent air, water and land from solid and hazardous waste pollution, including contamination of the tribe's aquifers, ground waters, surface waters, drinking water supplies and other natural resources;
(7) Provide environmental and health standards for the collection and disposal of solid waste;
(8) Prohibit future open dumping and littering of waste within the tribe's territory and eliminate unhealthy, unsightly and indiscriminate disposal or placement of solid waste; and
(9) Inform and educate persons living within the exterior boundaries of the Tribe of the need to participate fully in efforts to manage solid waste generation, transportation, and disposal on the Indian lands.
(B) In order to protect the health, safety, welfare and environment of the Pit River Tribe; to manage, protect and preserve the resources of the Pit River Tribe; to maintain the aesthetic appearance of the Pit River Tribe and to provide for the exercise of the inherent sovereign powers of self-government by the Pit River Tribe, the Pit River Tribe hereby asserts its sovereign authority over all actions taken by all persons within the territorial jurisdiction of the Pit River Tribe which affect the generation, collection, transportation, storage and disposal of solid waste.
ARTICLE II. AUTHORITY AND SCOPE
SECTION 201. AUTHORITY
(A) The Pit River Tribe is a federally recognized Indian tribe composed of eleven autonomous bands, governed by the Pit River Tribal Council. As such, the Pit River Tribe is a sovereign nation with jurisdiction over the natural resources located within the exterior boundaries of the tribe's territory. The disposal of solid wastes within the Tribal boundaries is an issue affecting the health, welfare and safety of residents and members.
(B) It is the sacred duty and obligation of the Tribal Council to safeguard, protect, manage, administer and develop the natural resources of the ancestral lands of the Pit River Tribe for the sole economic, cultural, and social benefit of the people of the Pit River Tribe. This Tribal Solid Waste Disposal Ordinance is hereby adopted by the Pit River Tribe pursuant to the inherent sovereign power and authority in the Pit River Tribe as reaffirmed by the Indian Reorganization Act of 1934 and the Tribal Constitution enacted pursuant thereto which was duly ratified by the Secretary of the Interior as principal agent for the trustee United States on December 3, 1987.
SECTION 202. SCOPE
(A) The provisions of this Ordinance shall apply to all existing and proposed solid waste disposal activities and to all activities which have the potential to affect cultural, ceremonial, religious, fishery, seasonal residential, public health, safety, welfare, land, air or water quality and other fundamental interests of the Tribe, including such activities conducted by non-members of the Tribe or on privately owned lands. Activities to be regulated hereunder include but are not limited to:
(1) Landfills and open dumps;
(2) Storage of animal waste;
(3) Automobile graveyards and junkyards;
(4) Landfilling of sludge or septic system waste;
(5) Individual, residential, industrial, commercial or agricultural sewage treatment facilities; and
(6) All other activities that involve the storage, collection, transportation or disposal of solid and/or hazardous waste within the exterior boundaries of the Tribe.
(B) It is not the intent of this Tribal Council Ordinance to impose unnecessary restrictions on the cultural and customary practices of the people of the Pit River Tribe. The Pit River Tribal people have always retained certain sacred tribal customs and traditional beliefs which are recognized by this Council and with all due respect hold the same exempt from this ordinance.
SECTION 203. INTERPRETATION AND APPLICATION OF THE CODE
(A) Interpretation: This code shall be liberally construed and applied to ensure its purpose as expressed in Section 103. Upon the effective date of this Code, it shall be unlawful for any person within the territorial jurisdiction of the Pit River Tribe as defined in the Tribal Constitution authorized by the Assistant Secretary of Interior on December 3, 1987, to impound, divert, withdraw, otherwise make any use of or take any action affecting the use of land for solid waste unless the applicable provisions of this Code and its regulations have been complied with. No rights or privileges shall be recognized to generate, collect, transport, store and/or dispose of solid waste other than those accorded under this Code.
(B) Applicability: Because any violation of this Ordinance or any regulation adopted thereunder will demonstrably and seriously impact the environment, including land, water and air, natural resources, public health, safety, welfare, political integrity and economic security of the Tribe, this Ordinance, and any regulations adopted thereunder, shall apply to:
(1) All persons within the exterior boundaries the tribe's territory, without exception, including but not limited to, all Tribal members, and all other persons on Indian lands, including any Indians who are members of other Indian tribes, all non-Indians, and any other person as defined under this Ordinance; and
(2) All places and lands located anywhere within the exterior boundaries of the tribe's territory 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 this Ordinance.
(C) Consensual Relations Among Non-Members, the Tribe and Tribal Members: Any person who is not a member of the Tribe who uses Indian lands, anywhere within the exterior boundaries of the tribe's Territory, 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 or hazardous waste on or near Indian lands 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 Ordinance, and any regulations promulgated hereunder.
SECTION 204. DEFINITIONS
(A) For the purposes of this Ordinance, the following words and phrases shall have the following meanings:
(1) "Approved Site" means a site permitted and approved by the Pit River Tribal Council or by the tribe's Environmental Department or Enforcement Agency or the State of California as a site for collection and/or disposal of solid waste.
(2) "Beneficial Use" means all lawful uses of waters identified in the Tribes water quality plan. Uses may include but are not limited to domestic, commercial, industrial, agricultural, traditional, cultural and recreational, and uses by fish and wildlife for habitat or propagation.
(3) "Beverage" means beer or other malt beverages and mineral waters, soda water and similar carbonated soft drinks in liquid form and intended for human consumption.
(4) "Beverage container" means the individual, separate, sealed glass, metal or plastic bottle, can, jar or carton containing a beverage.
(5) "Biodegradable" means degradable through a process by which fungi or bacteria secrete enzymes to convert a complex molecular structure to simple gasses and organic compounds.
(6) "Bulky waste" means large items of solid waste, including but not limited to appliances, furniture, large auto parts, trees, branches, stumps and oversized solid waste, the size of which precludes or complicates their handling by normal collection, processing, or disposal methods.
(7) "Collection" means the act of collecting solid waste or hazardous waste at the place of generation by an approved collection agent for transporting and does not mean removal.
(8) "Contaminate" means to introduce a substance into water that would cause: a. The concentration of that substance to exceed the maximum concentration or contaminant levels established pursuant to federal law and regulations; or b. An increase in the concentration of such substance where the concentration in the ground water already exceeds the levels established by federal law and regulations.
(9) "Council or Tribal Council" means the duly elected governing body of the Pit River Tribe empowered to adopt policies and enact laws governing the Pit River Tribe and its territory.
(10) "Degradable" means capable of decomposing by biodegradation, photodegradation or chemical process into harmless component parts after exposure to natural elements for not more than 365 days.
(11) "Demolition waste" means any solid waste, largely inert waste, resulting from the demolition of or razing of buildings, roads, and other man-made structures, and any other material defined as "demolition waste" pursuant to federal law.
(12) "Disposal" means the discharge, abandonment, deposit, injection, dumping, spraying, spilling, leaking, or placing of any solid waste or hazardous waste into or on any air, land, or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
(13) "Disposal facility" means a facility permitted to receive and dispose of solid waste and includes all contiguous land and structures, other appurtenances and improvements on the land. It does not include a facility the principal function of which is handling, treatment or composting of manure or other solid waste not intended for disposal. Disposal facility is used interchangeably with "Municipal Solid Waste Landfill Unit."
(14) "Disposal Site" means the location for disposing of solid waste in an approved manner, such as a sanitary landfill.
(15) "Enforcement Agency" means the Tribal environmental department or other agency designated by the Tribal Council to enforce the provisions of this Ordinance.
(16) "Environmentally sensitive area" means an area within the Tribes territory considered by the Council to be so subject to environmental disturbance as to warrant special rules to govern resource development.
(17) "Exterior boundaries of the Pit River Tribe" means the boundary lines of the Pit River tribe's territory as established and geographically defined under the laws of the United States, which encompasses all territory now or hereafter prescribed and ascertained, including fee patented and allotted lands used or claimed by any person, without regard to such person's membership in the Pit River Tribe.
(18) "Federal regulations" means regulations adopted by an agency of the United States government and published as a part of the Code of the Federal Regulations;
(19) "Garbage" means all kitchen and table food waste and animal or vegetable waste that attends or results from the storage, preparation, cooking or handling of food-stuffs.
(20) "Handling" means collection, transportation, storage, transfer or processing of solid waste or hazardous waste.
(21) "Hazardous waste" means:
a. Solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
b. Waste that poses a substantial present or potential threat to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed; or
c. Any substance that is hazardous, explosive, toxic, ignitable, reactive or corrosive and that is defined and regulated as such by the Pit River tribe's environmental department, the State or California or the United States of America; or
d. Any substance that is defined to be hazardous or toxic by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) or the Resource Conservation and Recovery Act of 1976 (RCRA) as either act may be amended from time to time, and by any regulations promulgated thereunder, including buy not limited to any substance, material, smoke, gas, particulate matter or combination thereof contain asbestos, petroleum or its byproducts or polychlorobiphenyls ("PCBS"); or
e. Solid waste that is flammable, corrosive, radioactive, toxic or reactive or that otherwise meets the criteria established for hazardous waste in federal law.
(22) "Health" means the state of well being, freedom from sickness.
(23) "Historical uses" means all uses that have historical significance for the Pit River Tribe.
(24) "Indian lands" means all lands held in fee or trust status by an Indian Tribe or individual within the exterior boundaries the tribe's territory. Without exception, this includes but is not limited to:
a. All Tribal trust and non-trust lands; and
b. Notwithstanding the issuance of any patent, fee, allotment, right-of-way, lease, or any real property interest of any kind, all lands held in fee or trust status by or for Tribal members and all non-member Indians and Tribes who are located within the tribe's territory.
(25) "Medical wastes" includes laboratory or surgical wastes, such as tissues, specimens of blood elements, excreta, and secretions obtained from patients or laboratory animals, or clothing, rags, or paper goods contaminated with such waste.
(26) "Landfill" means a disposal facility or part of a facility at which solid waste is permanently placed in or on the land.
(27) "Litter" means any discarded, used or unconsumed substance or waste, including but not limited to any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper containers or other packaging construction material, abandoned motor vehicle, motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or offensive matter of any kind, any object likely to injure a person or create a traffic hazard, or anything else of an unsightly or unsanitary nature that has been discarded, abandoned or otherwise improperly disposed of.
(28) "Mitigation" means a measure taken to reduce adverse impacts on the environment.
(29) "Modification" means any significant change in the physical characteristics or method of operation of a system for the collection, storage, transportation or disposal of solid waste.
(30) "Non-compliance" means any neglect, failure or refusal to do or perform an act set forth in this Ordinance.
(31) "Nuisance" means:
a. A condition that occurs as a result of handling, treatment, composting, or disposal of solid waste;
b. Which condition is injurious to human health or is indecent or offensive to the sense and interferes with the comfortable enjoyment of life or property; and
c. Affects an entire band, community or neighborhood or any considerable number of persons.
(32) "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 devise to provide sufficient resident time and mixing for complete combustion; and (3) control of the emission of the combustion products.
(33) "Open dump" means any facility or site at which solid waste or hazardous waste is disposed of in a manner that does not protect the environment, is susceptible to open burning or is exposed to the elements, vectors and scavengers, and includes any facility that fails to satisfy standards found in Tribal regulations and/or 40 CFR Part 258.
(34) "Owner/operator" means the responsible party collecting, storing, transporting and/or disposing of solid waste.
(35) "Permitted Contractor" means a person who has lawfully obtained a valid permit from the Tribal Solid Waste Department or Enforcement Agency of the Tribe to recover and transport solid waste.
(36) "Person" means an individual, public or private corporation, company, partnership, firm, association or society of persons, trust, estate, co-partnership, political subdivision, government agency, municipality, commission or department, or any other legal entity or its legal representatives, agents, or assigns whatsoever.
(37) "Photodegradable" means degradable through a process in which ultraviolet radiation in sunlight causes a chemical change in a material.
(38) "Pollutant" means any substance or energy entering the environment as a direct or indirect result of human activity which alters or has the potential to alter the physical, chemical, biological, cultural or aesthetic properties of the environment.
(39) "Pollution" means the condition caused by the presence in or on soil, air or water of any solid waste, hazardous waste or substance derived therefrom in such quantity, of such nature and duration or under such condition that the quality, appearance or usefulness of the soil, air or water is significantly degraded or adversely altered.
(40) "Processing" means the reduction, separation, recovery, treatment or recycling of solid waste or hazardous waste. (41) "Promulgate" means to formally make public.
(42) "Putrescible waste" means solid waste that contains material capable of being decomposed by microorganisms.
(43) "Recoverable" means the capability and likelihood of waste or byproduct being recovered from solid waste for a commercial or industrial use.
(44) "Recovered material" means material and byproducts that have been recovered or diverted from solid waste, but such term does not include those materials and byproducts generated from and commonly reused within an original manufacturing process.
(45) "Recreational waste" means solid waste generated at fairs, parks, celebrations, highway rest areas and other recreational sites.
(46) "Removal" means the act of taking solid waste or hazardous waste from the place of generation.
(47) "Residential waste" means solid waste generated at residences or a cluster of homes such as an outfit or camp as the result of domestic/ceremonial activities.
(48) "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.
(49) "Solid waste" means any nonrecyclable solid, semi-solid and liquid wastes including, but not limited to garbage, trash, rubbish, sludge, refuse, ashes, dead animals, abandoned vehicles or parts thereof, infectious wastes, hazardous wastes, manure, street and parking lot cleaning residues, industrial wastes, construction and demolition waste, discarded home and industrial appliances, vegetable or animal solid and semisolid waste, other discarded solid, liquid and semisolid waste from a wastewater treatment plant, water supply treatment plant or air pollution control facility or other discarded containerized gaseous material resulting from industrial, commercial, mining or agricultural operations, or community activities and other waste material, but not including solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or dissolved material in irrigation return flows; industrial discharges that are point sources subject to permits under 33 U.S.C. section 1342; or a source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended, 42 U.S.C. sections 2011, et. seq.
(50) "Solid waste disposal site" means the location where any final treatment, utilization processing or deposition of solid waste occurs.
(51) "State regulations" mean those regulations formally adopted by an agency of the State of California.
(52) "Storage" means the process of storing solid waste after generation prior to collection, transportation and/or disposal.
(53) "Toxic materials" means any chemical or mixture that presents an unreasonable risk or injury to human health or the environment.
(54) "Transfer/processing station" means a facility used to receive, temporarily store, process or transfer solid waste directly from smaller to larger vehicles for transport.
(55) "Transportation" means the process of transporting solid waste to and from a collection point to a disposal facility.
(56) "Treatment" means any method, technique or process designed or intended to change the physical, chemical or biological characteristics of solid waste or hazardous waste to render it less harmful to the quality of the soil, air and water; safer to handle; or easier to contain, manage or use as fuel, nutrient, soil amendment or other additive.
(57) "Tribal environment" means the functioning system composed of all living and non-living entities and objects within the boundaries of the Tribe together with their interactions and the inputs to and outputs of that system.
(58) "Tribal Resources" means the physical and biological resources of the Tribe within the boundaries of the Tribe, including but not limited to land, water, air, minerals, cultural or historical sites and objects, animal and plant life, and aesthetic values.
(59) "Tribal Lands" means all lands within the exterior boundaries of the Pit River tribe's Territory, which the Tribe owns in fee or trust status as now or hereafter prescribed and ascertained.
(60) "Tribally owned or controlled housing" means:
a. Those homes that are owned by the Tribe; and
b. Those homes, which, due to their location or agreement, are controlled by the Pit River Tribe.
(61) "Tribe" means the federally recognized Pit River Tribe.
(62) "tribe's Solid Waste Disposal Program" means all the authorities, activities, and procedures under this Ordinance or 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 40 CFR Part 258.
(63) "tribe's territory or tribe's Reservation" means the Pit River tribe's territory as established and geographically defined under the laws of the United States, encompassing all territory within its exterior boundaries as now or hereafter prescribed and ascertained, including fee patented and allotted lands used or claimed by any person, without regard to such person's membership in the Pit River Tribe.
(64) "Variance" means an authorized written permission for a delay or exception in the application of a given law, ordinance or regulation.
(65) "Vector" means a living animal, insect, or other anthropoid which transmits or can transmit an infectious disease from an organism or another.
(66) "Violation" means a breach of any right, duty, requirement or provision of this Ordinance.
(67) "Waste" includes waste water and any and all other substances, liquid, solid, gaseous, radioactive, heat laden, associated with human habitation, or of human or animal origin, or from any of man's activities including producing, manufacturing or processing operation of whatever nature, including such waste placed within containers of whatever nature prior to, and for purposes of, disposal.
(68) "Waters within the Tribes exterior boundaries or Tribal waters" means any water, surface or underground, contained within, flowing through or bordering upon the Tribes territory or any portion thereof.
(69) "Yard waste" means any leaves, grass clippings, garden debris and smaller chip branches.
(B) Other Wastes. The generation, collection, transportation, storage and disposal of wastes not defined as solid waste herein shall be governed by all applicable regulations and appropriate guidelines until such time as relevant Tribal codes are-enacted.
SECTION 205. RESPONSIBILITY FOR STORAGE AND DISPOSAL OF SOLID WASTE
(A) This Section defines the general policy for responsible parties.
(1) The past or present owner, agent, occupant, permittee, allottee or leasee of any real property on which solid waste is located shall be responsible for complying with the provisions of this ordinance even if the solid waste was placed on their property without their knowledge or consent.
(2) Any person generating, producing, storing, or any person who has received any solid waste shall be responsible for the proper storage, removal, transport and disposal of that solid waste. Solid waste, while being transported, shall be covered, tied or otherwise secured so waste will not be blown or dropped from the transport vehicle.
(3) Any person, who by contract, agreement or otherwise, arranges for the recovery, transport, disposal or dumping of solid waste is responsible for complying with the provisions of this Ordinance regarding that solid waste.
(4) Any person engaged in any aspect of solid waste management shall be responsible for the acts of each person under their employment or supervision. Reliance on representations by an officer, agency, employee or subcontractor shall not constitute a defense.
(B) In addition to other persons who may be responsible as set forth in this section, for the purpose of this Ordinance, a person generating solid waste is responsible for the lawful storage, removal, transport and disposal of that solid waste until it is legally deposited in an approved site or collected by a permitted contractor.
(C) Where solid waste is generated, produced, stored or received upon a leased premise, both the landlord and the tenant are responsible for compliance with the provisions of this Ordinance regardless of the provisions of the tenancy, except that neither party is responsible for actions outside the scope of their actual or constructive knowledge which were conducted by the other party in violation of this ordinance.
(D) When solid waste is dumped or deposited in violation of this Ordinance and three or more items in the solid waste identify the same person as the owner or recipient of the waste, there shall be a rebuttable presumption that a person is responsible for the unlawful dumping of solid waste.
ARTICLE III. TRIBAL SOLID WASTE DEPARTMENT
SECTION 301. SOLID WASTE DEPARTMENT
There is established a Tribal Solid Waste Department that is a division of the tribe's Environmental Office. The Tribal Solid Waste Coordinator shall oversee the Solid Waste Department. The Solid Waste Program Coordinator shall serve under the direction of the Environmental Office. The Tribal Solid Waste Coordinator shall cooperate with the Tribal Council, the U.S. Environmental Protection Agency and other federal agencies or the State of California, as necessary to carry out the intent of this Ordinance and implement the Tribal Solid Waste Management Plan.
SECTION 302. DESIGNATION AS LEAD TRIBAL AGENCY
(A) The tribe's Solid Waste Department through the Environmental Office shall be the lead agency for implementing this Tribal Solid Waste Disposal Ordinance and for all purposes under 40 CFR Part 258.
(B) The Tribal Environmental Office or Solid Waste Department shall communicate with the 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 Tribal Council approves, excluding any confidential or privileged information.
ARTICLE IV. SOLID WASTE DISPOSAL/SOURCE SEPARATION/ RECYCLING PROGRAM
SECTION 401. SERVICE RULES
(A) All residents, business owners and operators, and other individuals on Tribal lands within the exterior boundaries of the Tribe shall comply with the rules and regulations of the Pit River Tribe Solid Waste Disposal/Source Separation/Recycling Program. (B) The Pit River Tribal Council may create and enact such regulations as are necessary for the safe and sanitary collection, handling and disposal of solid wastes on Indian lands. (C) All residents and business owners and operators on Indian lands within the exterior boundaries of the Pit River Tribe are encouraged, and may be required to implement source separation to segregate solid waste streams to allow for recycling. If such activities are required, appropriate containers will be provided to enhance and control the source separation.
SECTION 402. SERVICES PROVIDED
(A) The services provided by the Solid Waste Department shall include domestic water, sewer and garbage. Additional services may be provided upon approval by the Environmental Office and ratification by the Tribal Council.
(B) All residents, business owners and operators, and other individuals on Indian lands within the exterior boundaries of the Tribe shall participate in the Pit River Tribe Solid Waste Disposal/Source Separation/Recycling Program.
SECTION 403. GARBAGE SERVICE
Garbage collection and disposal service shall be provided by the Solid Waste Department for a fee for the houses located on Tribal lands. The Solid Waste Department will provide this service directly or enter into a contract with a nearby solid waste collection contractor in order to provide this service to Tribal Residents.
SECTION 404. PUBLIC RELATIONS
(A) The Environmental Office shall keep customers notified about changes in fees, rates, solid waste collection schedule, levels of service and any other information which may affect customers use of sanitary facilities. Notices may be included in monthly billing statements or may be disseminated to the public through separate mailings, newsletters, tribal newspaper or posting throughout Tribal offices.
(B) Any person filing a complaint or seeking information shall be given assistance in a courteous manner. Complaints may be presented verbally or in writing to any Solid Waste Department Staff member for resolution and action. Complaints that cannot be resolved within ten (10) days should be referred to the Environmental Office in writing. The Environmental Office will resolve such complaints at the next regularly scheduled employee meeting.
SECTION 405. EMERGENCY NOTIFICATION
An emergency notification plan will be developed by the Environmental Office and reviewed annually for notifying residents and visitors of:
(A) Discontinued service for more than eight (8) hours.
(B) Substandard conditions in water quality. This includes bacteriological, chemical or physical quality deficiencies.
(C) Changes in scheduling of refuse pick-up and septic tank pumping.
(D) Any other conditions which may adversely affect the health of the community residents or visitors.
SECTION 406. LIMITS OF RESPONSIBILITY
(A) The Solid Waste Department or Environmental Office shall not be responsible for, nor shall it maintain or repair, any private or domestic water or sewer system, garbage, roads or lighting except by specific agreement establishing fair rates of compensation to the Solid Waste Department, and that is approved and signed by the Environmental Office and the owner of such facilities.
(B) The Solid Waste Department shall not be liable for any loss or damage beyond its control resulting from any defect in, or damage to, a customer's water or sewer lines or fixtures, garbage storage facilities, driveways or parking lots, hydrants or lighting.
SECTION 407. RIGHT OF ENTRY - INSPECTIONS
(A) The Solid Waste Department, or its authorized representative, is hereby authorized to make limited, reasonable inspections, at reasonable times, of any grounds, building or residence served by the Solid Waste Department to the extent necessary to insure that customer services are not being operated in a manner that would likely disrupt or interfere with other utility services.
(B) Except in cases of emergency where life, limb, or property are threatened, or in cases of immediate water shortages, the Solid Waste Department shall give the customer at least twenty-four (24) hours notice prior to requesting permission to enter and inspect.
(C) If permission to enter and inspect is denied or impeded in any way, the Solid Waste Department shall obtain a court order authorizing such entry and inspection. Where the permission to enter and inspect is unreasonably withheld, the Solid Waste Department may assess court costs and related expenses and add them to the affected customer's bill.
SECTION 408. DISRUPTION OF SERVICE
The Solid Waste Department may shut off utility, water or sewerage service, or disrupt traffic on the public right-of-way to perform repairs, provided that advance notice has been given to affected customers. Provided, however, that in cases of emergencies where loss of life, limb or property is threatened, or in cases of immediate water shortage, service may be disrupted without advance notice. The Solid Waste Department shall not be responsible for consequent damage as a result of lack of water or sewerage during authorized disruptions of service.
ARTICLE V. CUSTOMER OBLIGATIONS
SECTION 501. CUSTOMER TERMINATION OF SERVICE; ABANDONMENT
(A) A customer planning to vacate any grounds, building or residence served by the Solid Waste Department shall notify the Solid Waste Department in writing one (1) week prior to the date the customer plans to either vacate or terminate service, whichever is later.
(B) A customer who fails to give notice is responsible for all charges accrued up to one (1) week after notice is received by the Solid Waste Department, or up until service is terminated, whichever comes first.
SECTION 502. SOLID WASTE FACILITIES
The customer shall provide his own refuse containers and shall maintain the cans and holding facility in a manner that prevents the harborage of rodents and vermin. There shall be no excessive accumulation of refuse, garbage or solid waste in the community or around individual homesites.
SECTION 503. USE OF SEWERAGE SYSTEM
The customer shall use the sewerage collection, treatment and disposal system only for the disposal of normal household liquid waste including waste from toilet facilities, shower and bathing facilities and kitchen facilities.
ARTICLE VI. FEE SCHEDULES AND BILLING
SECTION 601. FEE SCHEDULE ESTABLISHMENT
(A) Basic Rate for Services. A standard household fee for Tribally owned or controlled housing to cover solid waste disposal may be set by the Pit River Tribal Council and may be raised or reduced periodically by the council to cover the cost of disposal or of compliance with applicable laws and regulations. The standard household fee shall apply to all residents of Tribally owned or controlled housing, and the Council shall not reduce fees to any person or household because that person or household may produce less solid waste than any other person or household. Residents of Tribally owned or controlled housing who fail to make full and timely payments shall be subject to penalties pursuant to this Ordinance.
(B) Business and Industrial Fees. The Pit River Tribal Council may set a different fee for businesses or industries, or a schedule of fees based upon size or actual or anticipated solid waste production of businesses or industries.
SECTION 602. PUBLIC HEARING
The Environmental Office shall hold a public hearing whenever a new fee schedule is proposed for adoption. Fifteen (15) days in advance of the hearing, the proposed fee schedule shall be sent to each customer and shall be posted in appropriate places. Following the public hearing the Environmental Office shall set a fee schedule, taking into consideration comments received at the hearing.
SECTION 603. NOTICE TO CUSTOMERS
The Tribal Council shall disseminate a fee schedule to each customer by first class mail no less than fifteen (15) days prior to the beginning of the first billing period for fees established under this section.
SECTION 604. BILLING RESPONSIBILITY
(A) The Environmental Office and/or Solid Waste Department is responsible for billing customers for Solid Waste. The billing service, however, may be contracted to the Tribe, Housing Authority, other agency or firm at the discretion of the Environmental Office and Tribal Council.
(B) The fee schedule, to be determined by the Pit River Tribal Council shall be payable to the Tribe for waste disposal, and that any decisions of noncompliance shall be grounds to levy fines as defined in this Ordinance.
SECTION 605. MONTHLY STATEMENT
Each month the Solid Waste Department shall mail to all utility customers a statement detailing the following information:
(A) The customer's name and account number;
(B) The types and levels of service used in the current month;
(C) The billed cost of the current month's service, plus an accounting of bills or charges past due, if any;
(D) The date that payment is due; and
(E) The location to mail or deliver payment.
SECTION 606. DUE DATE
The monthly date on which payment will be due shall be established by Environmental Office regulation.
SECTION 607. PAYMENTS PAST DUE
Payments not received within ten (10) days after the established due date are considered past due. The Solid Waste Department shall issue a notice of payment past due to the customer, detailing the payment owned and the consequences for failure to pay. The notice shall be sent no later than the date the next billing is sent out.
SECTION 608. DELINQUENT ACCOUNT
If the payment past due is not paid within ten (10) days after the next regular monthly due date, the account shall be declared delinquent.
SECTION 609. NOTICE OF DELINQUENCY
(A) The Solid Waste Department shall immediately notify the customer in writing once his account has been declared delinquent, and list the sanctions that may be imposed without further notice.
(B) Notice of delinquency shall be made by certified mail or such other means to provide proof of receipt by the customer.
SECTION 610. ADVANCE DEPOSITS
The Environmental Office may require each new customer to pay an advance deposit equal in amount to the basic monthly rate fees for the first month of service prior to receiving services. The deposits shall be retained by the Environmental Office no longer than one year. The deposits, with interest compounded at passbook rates, shall be credited to the individual customer's utility account balance at the end of the deposit period, providing that the customer's account is not delinquent and in arrears. Any remaining deposit funds will be returned to the customer.
ARTICLE VII . ENFORCEMENT; PENALTIES; SANCTIONS
SECTION 701. AUTHORITY AND ENFORCEMENT
The Environmental Office is hereby authorized by the Tribal Council to collect established fees for service and to impose sanctions and penalties for non-payment. The Environmental Office shall enforce its regulations, fee collections and provisions of this ordinance by shutting off the utilities, including water service, of any and all violators and delinquent bill-payers or imposing other penalties and sanctions as authorized.
SECTION 702. PENALTY SCHEDULE
The Environmental Office shall develop and adopt a penalty schedule which outlines specific penalties, fines and assessments for violation and non-compliance with the provisions of this ordinance. The penalty schedule shall be reviewed for appropriateness annually by the Environmental Office.
SECTION 703. SANCTIONS AUTHORIZED
The following sanctions may be imposed by the Environmental Office for failure of the customer to comply with any provisions of this ordinance or with any duly adopted regulation of the Environmental Office:
(A) Termination of service(s);
(B) Assessment of penalties based on a penalty schedule adopted by regulation of the Environmental Office;
(C) Assessment of late charges based on a schedule adopted by regulation of the Environmental Office;
(D) Assessment of damages resulting from the customer's non-compliance;
(E) Forfeiture of all or part of a deposit and any accumulated interest;
(F) Filing of a lien against the customer's property after the account is declared delinquent;
(G) Enforcing a lien by seeking judgment, and satisfaction from the customer's property from a court of competent jurisdiction;
(H) Filing suit for damages in a court of competent jurisdiction; and
(I) Referring violations that may involve criminal conduct to the police or prosecutor.
SECTION 704. SANCTIONS GUIDELINES
The Environmental Office shall use the following guidelines when considering the appropriate sanctions to be imposed in any given case:
(A) Whether the sanction is required by this ordinance or other applicable law, or whether imposition is discretionary;
(B) The minimum sanction needed to effect compliance;
(C) The irreparable harm to the customer and/or family if the sanction is imposed;
(D) The irreparable harm to operation of the Solid Waste Department, and to the Tribe, if the sanction is not imposed;
(E) The customer's past record of compliance or non-compliance, or good faith efforts to achieve compliance;
(F) The customer's statements or behavior indicating the likely success of a given sanction securing compliance;
(G) The irreparable harm to other persons or property if the sanction is not imposed; and
(H) The effectiveness of similar sanctions in securing compliance in other cases.
SECTION 705. ATTACHMENT OF CUSTOMERS PROPERTY
The Solid Waste Department or Environmental Office shall not seek to attach customer's property, nor seek to have fines assessed by Tribal Court, except in limited cases of blatant or continued abuses or destruction of property.
ARTICLE VIII. RUBBISH DUMPS
SECTION 801. GENERAL POLICY
(A) Existing, unregulated rubbish dumps may no longer be utilized (pursuant to requirements of the Federal Solid Waste Disposal Act (SWDA) as amended by the Resources Conservation and Recovery Act (RCRA) and applicable federal regulations). By adoption of this ordinance, the Pit River Tribe has determined to cease to allow the disposal of solid waste in existing rubbish dumps on all Indian lands within the exterior boundaries of the Pit River Tribe, and to arrange for the provision of an alternative solid waste management service applicable to all residents of the Tribe.
(B) This section shall be applicable to existing, unregulated rubbish dumps located within the exterior boundaries of the Tribes territory, irrespective of whether such dumps are located on tribal land, assignment land, allotments, fee parcels, or any other type of land holding.
ARTICLE IX. UNLAWFUL PRACTICES
SECTION 901. COMPLIANCE
(A) Any person violating any provision of this Code or its regulations shall be subject to any or all of the sanctions in Part 2 of this Ordinance.
(B) Vehicles and equipment used to commit acts which violates any provision of this Ordinance are subject to confiscation, impoundment, and forfeiture pending appearance to answer a complaint or citation, and may be used to satisfy fines or penalties which may be assessed by a court of competent jurisdiction.
SECTION 902. DUMPING OF SOLID WASTES ANYWHERE OTHER THAN AT AUTHORIZED SITES
No person shall dump, place, abandon, or deposit any solid wastes on land except at disposal sites authorized by the Tribal Solid Waste Department or Environmental Office.
SECTION 903. DUMPING OF SOLID WASTES INTO RESERVATION WATERS
No person shall dump, place, abandon or deposit any solid wastes into Reservation waters except in a manner approved by the Tribal Solid Waste Department or Environmental Office.
SECTION 904. LITTER
(A) No person shall dump, deposit or dispose of solid waste any place on Indian lands other than at an approved site.
(B) No person may discard litter on Reservation lands.
SECTION 905. TRESPASS
(A) Any person entering Indian lands for the purpose of dumping or disposing of solid waste, or who dumps or disposes of solid waste on Indian lands in violation of this ordinance shall be guilty of trespass.
(B) The Council may sue for damages for trespass and any other applicable common law or statutory cause of action in any court of competent jurisdiction. In the case of a trespass conviction, the Pit River Tribal Council may initiate a hearing upon such violations and may impose a penalty of $25 to $25,000 depending on the severity of the infraction for each violation as well as costs to clean up, abate, remove and mitigate the environmental impacts of the solid waste and to restore the Tribal Trust Land to the condition in which it existed immediately prior to the violation.
SECTION 906. ACCUMULATION OF GARBAGE AND REFUSE
(A) It shall be unlawful for any person, firm, corporation, or government entity to place, deposit, leave, dump, dispose of, or permit the accumulation of any solid waste, including garbage, rubbish or trash, in any building or upon any premises or on property within the boundaries of the Tribe, except in garbage cans or other containers for purposes of collection by an authorized collection agent or at an approved disposal site.
(B) No operator, owner, agent, or employee of any business, industry or facility within the exterior boundaries of the Tribe shall dispose, or cause to be disposed, any solid waste in the waste receptacles of any other business, industry facility or residential premises.
SECTION 907. BULKY ITEMS
It shall be unlawful for any person to place, leave, dump, or permit the accumulation of unused, large bulky items, such as white goods (refrigerators, stoves, etc.) or inoperable cars or trucks or parts thereof in any open and visible location on Indian lands.
SECTION 908. LANDFILLS AND COLLECTION SYSTEMS
No person may operate a landfill or solid waste disposal site or operate a solid waste collection system unless he has obtained a permit for such operation.
SECTION 909. HAZARDOUS MATERIALS
(A) No person shall generate, store, transfer, transport treat, discharge, release or dispose of a hazardous waste through the conduct of any business on Indian lands, except as permitted under the Resource Conservation and Recovery Act (RCRA) and/or this Ordinance.
(B) It is unlawful to collect and transport solid waste unless the person is responsible for that waste pursuant to the provision of Section 205 or the person is a permitted contractor as defined in Section 204.
SECTION 910. OPEN DUMPING AND BURNING
No person shall dispose, release discharge, or conduct open dumping or open burning of any solid wastes on Indian lands, except as permitted under the Resource Conservation and Recovery Act (RCRA) and/or this Ordinance.
SECTION 911. OBSTRUCTION OF PERSONS IN THE PERFORMANCE OF THEIR DUTIES
The willful obstruction of or interference with any person in the performance of their duties under this Code shall be unlawful.
SECTION 912. MISSTATEMENT OF MATERIAL FACTS
The known misstatement of any material fact by any person or entity when providing information required by this Code shall be unlawful.
SECTION 913. UNAUTHORIZED USE OF TRIBAL MEMBER STATUS
Unauthorized use of Tribal member status to benefit non-Tribal members, or collusion by Tribal members to violate or assist in violation of any provision of this Ordinance shall subject the Tribal member to maximum penalties provided by this Ordinance.
SECTION 914. EXEMPTION FOR FARMING OPERATONS
No provision of this Chapter shall be construed so as to prohibit a farmer or rancher from disposing solid waste resulting from normal farming operations upon his own land; provided, that such disposal does not create a nuisance or a public health hazard, or does not otherwise violate Tribal law.
PART 3. SOLID WASTE DISPOSAL
ARTICLE X. ENFORCEMENT
SECTION 1001. ENFORCEMENT POLICY
(A) It is the policy of the Pit River Tribe to encourage informal, practical, result-oriented resolution of alleged violations and actions needed to prevent damage to Indian lands, resources or harm to the health, safety or welfare of the Tribal population.
(B) It is also the policy of the Tribe, consistent with the principles of due process, to provide effective procedures for enforcement.
SECTION 1002. ENFORCEMENT AGENCIES
(A) The Pit River tribe's Solid Waste Department or Enforcement Agency shall be responsible for enforcing the provisions of this Ordinance. Specifically, the Solid Waste Department shall conduct investigations when a complaint is received by the Tribe or Enforcement Agency or when another Tribal agency believes that a violation of this Ordinance has occurred.
(B) Other Enforcement Agencies. In addition to the Solid Waste Department, the following law enforcement officers are authorized to enforce this Ordinance by issuance of citations for violations of this Ordinance:
(1) Tribal Rangers
(2) Tribal Reserve Officers
(3) Tribal Police Officers
(4) Indian Health Services under 25 U.S.C. Sections 3901-3908.
(5) State Police Officers (?)
(C) Duly authorized law enforcement officers are empowered and directed to enter in or upon any premises within the exterior boundaries of the Tribe which is suspected of containing or having present therein or thereon disposal of solid or hazardous waste in violation, or suspected to be in violation, of this Ordinance.
(D) Law enforcement officers shall issue citations based on sufficient evidence that a person has caused or facilitated a disposal on Indian lands in violation of this Ordinance, whether or not the officer witnessed the act of disposal. Law enforcement officers may issue citations based on evidence obtained pursuant to Section 205(D).
SECTION 1003. ENFORCEMENT BY THE UNITED STATES
The Secretary of the Interior, or his authorized delegate, including the Superintendent, Redding Agency, along with offices of the Bureau of Land Management or agents or employees of these officials are hereby requested and authorized to enforce the provisions of this Ordinance and take any enforcement action authorized by this Ordinance or federal laws or regulations which do not interfere with action being taken by the Tribe.
ARTICLE XI. IMPLEMENTATION AND COMPLAINCE
SECTION 1101. DISCOVERY
(A) If a operator knows or has reason to believe that hazardous waste is on Indian lands, the person shall notify the Solid Waste Department within twenty-four (24) hours of discovery of such waste.
(B) Any person who finds or witnesses solid waste disposal on Indian lands in violation of this ordinance shall immediately notify Tribal officials of said disposal and shall fully disclose all known information regarding the disposal.
SECTION 1102. FILING OF COMPLAINT
(A) All written and verified complaints shall be filed with the tribe's Solid Waste Department. Each complaint shall contain a statement of the alleged misconduct, including any section of the Solid Waste Disposal Ordinance alleged to have been violated, or other applicable regulation and the alleged facts upon which such charges are based.
(B) Filing of Complaints:
(1) Own Initiative. The Solid Waste Department may file a complaint on its own initiative where the Tribal agency itself shall have cause to believe that, any person is violating any solid waste regulation or permit condition.
(2) Other Agencies. The Solid Waste Department may receive complaints from other the Tribal agencies, offices or departments where the Tribal agencies itself shall have cause to believe that, any person is violating any solid waste regulation or permit condition.
(3) Individual Complaints. The Solid Waste Coordinator may initiate and/or receive review and/or investigate complaints filed with the Solid Waste Department.
(C) The Solid Waste Department shall receive and review all complaints filed with the Solid Waste Department. Such receipt of complaints shall cause a prompt investigation to be made by the Solid Waste Department.
SECTION 1103. INVESTIGATION AND INSPECTIONS
(A) Within ten days (10) upon receipt of complaint, the Solid Waste Coordinator shall investigate the allegations in the complaint. If the Solid Waste Coordinator finds sufficient cause to proceed, the Solid Waste Coordinator shall conduct an informal conference to determine violations or noncompliance with this Code.
(B) The Solid Waste Department or Enforcement Agency shall have the power to conduct an investigation and inspection for regulatory violations during normal business hours. If information is identified as confidential, the Solid Waste Department shall treat it as such.
SECTION 1104. NOTICE
The Solid Waste Coordinator shall also issue to the government official a written notice containing a statement of alleged misconduct, including any section of the Solid Waste Disposal Ordinance alleged to have been violated, or other regulation violated. The notice shall state alleged facts upon which such charges are based.
SECTION 1105. NOTICE OF VIOLATION
(A) If the Solid Waste Department finds after an investigation pursuant to Section 1103 of this Ordinance that a violation of any regulation or permit condition exists, the Solid Waste Department shall promptly notify both the alleged violator and the Tribal Council in writing.
(B) In the case of an apparent violation of this Ordinance, the Solid Waste Department is authorized to issue a Notice of Violation to the persons(s) apparently responsible for the violation, and, if the apparent violation occurred on property owned by a person other than the alleged violator, a Notice of Violation shall also be issued to the landowner.
(C) A Notice of Violation will include a Summons to appear before the Environmental Office for an informal conference at a specified time and date, and shall advise the alleged violator that failure to appear may result in the imposition of civil penalties.
(D) Both a Notice of Violation and a Cease and Desist Order may be issued for a single incident.
SECTION 1106. CEASE AND DESIST ORDER
(A) In the case of a continuing violation or a threatened violation, the Solid Waste Department is authorized to issue a Cease and Desist Order to prevent the violation from continuing or occurring.
(B) Failure to comply with a Cease and Desist Order shall constitute a violation of this Ordinance.
(C) If a Cease and Desist Order is issued without an accompanying Notice of Violation, the Order will inform the recipient that failure to comply with the Order will constitute a violation of this Ordinance which will result in the issuance of a Notice of Violation and may result in the imposition of civil penalties.
(D) Variances. Any person seeking a variance from the Pit River Tribe Solid Waste Code or its regulations shall do so by filing a written petition with the Environmental Office.
SECTION 1107. RESPONSE TO NOTICE
Within five (5) working days after receipt of the complaint, the accused person(s) shall file a written response setting forth any admission, denial, affirmative defense, ore other matter upon which they intend to rely on at the informal conference.
ARTICLE XII. INFORMAL CONFERENCES
SECTION 1201. INFORMAL CONFERENCE
(A) The Environmental Office shall afford the landowner or his or her representative reasonable opportunities to discuss proposed enforcement actions at an informal conference prior to taking further enforcement action, unless the Solid Waste Department or Environmental Office determines that there may be either imminent environmental damage to Indian land, resource or adverse impact on the health, safety and welfare of the Tribal population.
(B) Informal conferences may be used at any stage in the enforcement proceedings, except that the Environmental Office or Solid Waste Department may refuse to conduct informal conferences with respect to any matter then pending before the Tribal Council or Tribal Court.
SECTION 1202. REPORTS REQUIRED
The Tribal Agency shall keep written notes of the date and place of the conference, the persons in attendance, the subject matter discussed an any decisions reached with respect to further enforcement action.
ARTICLE XIII. ENFORCEMENT HEARINGS
SECTION 1301. DETERMINATION TO PROCEED
(A) If the landowner and the Solid Waste Department or Environmental Office are unable to resolve the matter via an informal conference, the Tribal Council is authorized to conduct adjudicatory hearings to determine if a violation of this Ordinance has occurred.
(B) In such a hearing, the Solid Waste Department's designated official, in cooperation with the Tribal attorney's office shall present the case to the Tribal Council to establish that the person(s) charged has (have) committed a violation of this Ordinance.
(C) Any person so charged shall be entitled, at his or her own expense, to be represented by an attorney or other representative authorized to practice law before the Tribe.
SECTION 1302. ADMINISTRATIVE HEARINGS
(A) A hearing on allegations of nondisclosure shall be scheduled within fifteen (15) days after it has been presented. The Tribal Council, in the capacity of a quasi-juridical body, shall conduct administrative adjudicatory hearings on any alleged violation of noncompliance.
(B) The defendant should be given notice particularly defining the allegations and by whom. The designated official and/or Tribal attorney shall have the burden of proving that a violation of this Ordinance has occurred and that a person charged was responsible for the violation. Due process requires that the accused have the right to be represented, present testimony and cross-examine witnesses and his/her accuser.
(C) During the hearings, the Rules of Civil Procedure and the Rules of Evidence shall not apply, but the hearing shall be conducted so that all relevant views, arguments and testimony are amply and fairly presented without undue prejudice. The Council shall allow the accused and the petitioner to call and cross-examine witnesses and submit all relevant evidence.
(D) The Tribal Council shall rule that a violation of this Ordinance has occurred if it finds that the charges are supported by substantial evidence and that a preponderance of the credible evidence supports a finding that a violation has occurred.
(E) In any complaint where the accused is a Tribal government official, the Tribal Council, upon completion of the adjudicatory administrative hearing, shall deliberate in executive session and by resolution render its findings of facts, conclusions of law and recommendations for sanction. Said findings, conclusions and recommendations shall be forwarded to the Pit River Tribal Council during its next regular or special session for final adoption of sanction.
SECTION 1303. ADMINISTRATIVE DECISION
(A) A majority vote of a quorum duly seated shall be required to make a determination.
(B) Within fifteen (15) days after the date of any enforcement hearing, the Tribal Council shall issue a written decision. If the Council determines that a violation has occurred and that the person(s) charged was (were) responsible for the violation, the Council's decision shall include an Enforcement Order.
(C) The hearing body may impose or recommend any sanctions, civil damages, restitution; or other penalties provided in this Code; or refer their findings to other appropriate entities for action.
(D) Location of the repository of such records shall be the responsibility of the Tribal Secretary's approval.
SECTION 1304. ENFORCEMENT ORDERS
(A) Based upon the evidence presented at the hearings, the Council shall sustain, modify or reverse the action or recommendation of the Environmental Office. The Council shall render a written decision within five (5) working days. This decision shall include the reasons for the decision. A copy of the decision shall be sent to the petitioner and the accused. Anyone aggrieved by the Council's decision has the right to appeal the decision to the Tribal Court within thirty (30) days notice of the decision.
(B) An Enforcement Order shall direct any person(s) found to have committed a violation of this Ordinance to take whatever corrective action the Tribal Agency deems appropriate under the circumstances. An Enforcement Order may impose civil penalties in accordance with a schedule of civil penalties.
(C) Alternatively, an Enforcement Order may impose civil penalties in the event that a person found to have committed a violation of this Ordinance does not take corrective action in accordance with the Order within a prescribed time frame.
(D) The person or Enforcement Agency in charge of enforcement shall serve the violator, in person or by mail, with a notice of assessment of penalties which shall be due and payable to the Tribe within thirty (30) days of this notice.
SECTION 1305. EMERGENCY ORDERS
Notwithstanding any other provision of this Ordinance, if the solid Waste Department or Environmental Office determines that noncompliance with this Ordinance is presenting an imminent and substantial threat to the public health, welfare or environment and determines, in consultation with the tribe's attorneys, that it is not practicable to assure prompt protection of the public health, welfare or environment of an administrative or judicial enforcement under this Part, the Tribal Environmental Office may issue such orders as may be necessary to protect the public health, welfare or environment. Any such order shall be effective immediately upon issuance and shall remain in effect for a period not to exceed sixty (60) days.
SECTION 1306. SPECIAL PROVISIONS FOR TRIBAL DEPARTMENTS AND AGENCIES
In any case in which the Tribal Council or any Tribal agency or department is alleged to have violated the terms and conditions of a solid waste permit, or to have conducted activities without a permit, the Tribal Agency shall bring the matter to the attention of the Tribal Council who shall consider taking action to ensure compliance with this Ordinance. If the matter cannot be resolved informally, the Tribal Agency shall conduct an enforcement hearing for the purpose of making factual determinations and issuing a decision recommending a course of corrective action if necessary.
ARTICLE XIV. APPEALS
SECTION 1401. JUDICIAL REVIEW
The Tribal Court shall have jurisdiction of all cases and controversies arising under this Ordinance.
SECTION 1402. APPEALS BY INDIVIDUAL
Any person who is aggrieved by the issuance or denial of a solid waste permit without respect to whether that person, corporation or other entity is a party to such permit application, or who is the subject of an Enforcement Order, may file an appeal with the Tribal Court. The Court is authorized to hear such appeal.
SECTION 1403. APPEALS BY TRIBAL AGENCIES
(A) The Solid Waste Department or Environmental Office may request the Tribal Council to authorize the Solid Waste Department to file an action in Tribal Court pursuant to this Ordinance for a temporary restraining order, a preliminary injunction, a permanent injunction or any other relief provided by law, including the assessment and recovery of civil penalties and clean up and administrative costs associated with the enforcement of this Ordinance, in any of the following instances:
(1) Whenever a person has violated, or is in violation of, any provision of this Ordinance, including but not limited to a regulation, permit or order issued pursuant to this Ordinance;
(2) Whenever a person submitted false information under this Ordinance or regulations promulgated under this Ordinance; or
(3) Whenever a person is creating an imminent and substantial endangerment to the public health, welfare, environment or cultural resources of the Tribe, in which case the Tribal Agency shall pursue injunctive relief but not the assessment of penalties, unless the endangerment is caused by a violation, as specified in paragraphs (1) and (2) above.
(B) A notice of appeal shall be filed within ten (10) working days of the issuance of a written decision. The hearing shall be on the record only.
(C) The Pit River Tribal Court shall have de novo jurisdiction to hear appeals from final decisions of the Tribal Council involving violations under this Code. The standard of review shall be recognized administrative law standards.
(D) The Pit River Tribal Court shall have a record of the review of all other non-adjudicatory and adjudicatory hearings conducted by either the Solid Waste Coordinator or the Tribal Council.
SECTION 1405. APPEALS BY THE TRIBAL COUNCIL
Violations of any provision of this ordinance, and of any regulations enacted pursuant to it, shall be deemed a public nuisance and may be prosecuted by the Pit River Tribal council in any court of competent jurisdiction.
SECTION 1406. RETALIATION PROHIBITED
(A) Retaliation against any party or witness to a complaint shall be prohibited. Retaliation shall include any form of adverse or punitive action.
(B) This protection shall also be afforded to any person(s), including the Solid Waste Department and Environmental Office staff, offering testimony or evidence or complying with directives authorized under this Ordinance.
(C) Any violations shall be subject to penalties under this Code, as well as obstruction and contempt violations of both the civil and criminal codes of the Pit River Tribe.
ARTICLE XV. SANCTIONS AND PENALTIES
SECTION 1501. COMPLIANCE AND ENFORCEMENT PROCEDURES
Any person who fails to comply with any provision of this Ordinance shall be subject to the penalties and other protective actions set forth herein. In the event of non-compliance, the person or agency designated by the Council to be responsible for enforcement shall serve the violator, in person or by mail, with a notice of non-compliance which shall specify non-compliance with the provisions of this Ordinance or the terms of the plan of development submitted pursuant to this Ordinance and shall specify the action which must be taken to correct such non-compliance, as well as the time limits within which such action shall be taken.
SECTION 1502. REMEDIES AND PENALTIES FOR EACH VIOLATION
A fine as indicated in Section 10 plus the cost to clean up, abate, remove and mitigate the environmental impacts of the solid waste and to restore the Indian land to the condition that existed immediately prior to the violation may be imposed for each violation.
SECTION 1503. ORDERS TO CEASE ACTIVITY
(A) In the event of non-compliance with this Ordinance, with any notice of non-compliance, or with any applicable federal law or regulation, the person or agency designated by the council to be responsible for enforcement may order the cessation of such activity without additional notice to the violator if the non-compliance is not cured in five (5) calendar days.
(B) If deemed necessary, after the five (5) day period of non-compliance, vehicles and equipment may be impounded, or access restricted to an area or site until the non-compliance is cured. The violator shall be served, in the case of violation of this Ordinance, with a statement of the reasons for the cessation order, and the actions needed to be taken before the order will be lifted.
(C) A copy of this cessation order and the statement of reasons for the order shall be delivered to the Tribal Council.
SECTION 1504. MONETARY FINES
(A) In addition to the penalties provided by federal regulations, the person who violates any provision of this Ordinance shall be liable for Civil Penalties equal to the actual damages.
(B) In the event that the Environmental Office is unable to collect the civil penalty, the Solid Waste Coordinator shall refer the matter to the Tribal attorney who shall recover such amount in the appropriate court.
(C) Any intentional or willful violator may be liable for punitive damages for each offense in an amount not to exceed $10,000. Each violation constitutes a separate offense.
(D) Failure to pay any penalties imposed shall be considered an additional violation of this Title.
SECTION 1505. RECOVERY OF DISPOSAL COSTS
In addition to the fines and penalties indicated in this Ordinance, the violator shall pay the cost to clean up, abate, remove and mitigate the environmental impacts of the solid waste and to restore the Indian land to the condition that existed immediately prior to the violation may be imposed for each violation.
SECTION 1506. INJUNCTIONS
If the violation of any of the provisions of this code or any rules and regulations promulgated pursuant thereto are determined to be a nuisance or a hazard to the health and safety of humans or harmful to the environment, such activity may be restrained or enjoined at any time by the Tribal Court; provided it can be shown that immediate and irreparable injury, loss or damage will result if such violation or activity is not restrained or enjoined. The Tribal attorney/prosecutor, upon request of the Solid Waste Coordinator, shall bring an action to obtain an order to restrain or enjoin any such violation.
SECTION 1507. EXCLUSION
Any person who is not subject to the criminal jurisdiction of the Pit River Tribe may be subject to exclusion from the territory of the Pit River Tribe for any violation of the provisions of this code. Exclusion proceedings may be initiated by the Tribal attorney/prosecutor in the Tribal Court of the Pit River Tribe.
SECTION 1508. REMEDIES FOR NON-COMPLIANCE
(A) In the event a violator fails to take action in accordance with the notice of non-compliance or cessation order served on him, pursuant hereto, the person or agency in charge of enforcement may:
(1) Continue its cessation actions or impoundment of vehicles and equipment;
(2) Request the Secretary to serve notice of intent to cancel the lease or mineral agreement, specifying the basis for notice;
(3) Request the Secretary to proceed as provided in the federal regulations, and to assess penalties as provided by these federal regulations;
(4) Assess civil penalties as set forth in SECTION 2 herein; and (5) Take any other action deemed appropriate.
(B) In addition, failure or refusal to pay fees imposed by the Pit River Tribe Solid Waste Disposal Program shall require imposition of penalties for companies doing business on Indian lands, who will be subject to utility disconnection pursuant to the provisions of this Ordinance.
(C) If a person who has been found to have committed a violation does not take corrective action within the prescribed time frame, an appropriate department or agency of the Tribal government may take the necessary corrective action, in which case the amount of any civil penalty shall be increased by twice the amount of the cost incurred by the Tribal department or agency taking the corrective action.
SECTION 1509. OTHER PROCEEDINGS
(A) In addition to the proceedings in this Ordinance, the Tribal attorney/prosecutor is authorized to initiate proceedings, separately or in connection with a civil or exclusion proceeding brought under this Law and Order Code, for any damages caused to the lands or other resources of the Pit River Tribe as the result of any violation, including payment of costs of all associated remedial action taken, for any expenses incurred in investigating and evaluating such damages, for any administrative costs incurred as a result of this matter and for the reasonable value of the attorney time and expenses associated with such proceedings.
(B) In addition to the proceedings in this Ordinance, the Tribal attorney/prosecutor is authorized to initiate proceedings, separately or in connection with a criminal proceeding in a court of competent jurisdiction for any allowable damages caused to the lands or other resources of the Pit River Tribe.
ARTICLE XVI. MISCELLANEOUS
SECTION 1601. USE OF FUNDS
Monies derived from fees and penalties under this Code shall be available to the Solid Waste Department solely for the administration and implementation of the Pit River Tribe Solid Waste Ordinance and its regulations. Such funds shall be deposited into a duly established revolving account and expended in accordance with the revolving account plan of operation pursuant to an approved budget. Any monies contained in said revolving account at the end of the fiscal year shall not revert to the general fund and shall remain available for appropriation as provided in this section.
SECTION 1602. CONFLICTING AUTHORITY
The Pit River Tribe Solid Waste Code and its regulations govern storage, transportation, collection, disposal and associated operations of solid waste by residences, businesses, institutions, recreational areas and industries on and/or affecting lands of the Pit River Tribe. This Code and its regulations supersede any and all authority to the contrary. Wherever other codes, acts or resolutions adopted by the Pit River Tribe Council and its Committees may be read to confer concurrent authority, this Code shall govern.
SECTION 1603. AMENDMENTS
The Tribal Council reserves the sole right to amend this Solid Waste Ordinance and to issue rules effecting all aspects of the Ordinance. Provisions in the Ordinance allow the Tribal Council full flexibility to enact measures which will benefit the Tribe. The inclusion of these provisions does not necessitate their implementation, but allows the Tribal Council flexibility to alter the Ordinance according to the evolving needs of the Pit River Tribe.
SECTION 1604. MODIFICATIONS AND APPLICABILITY OF PART 258 CRITERIA
This Ordinance incorporates by reference all of the criteria contain 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 Ordinance, and supercede any of the provisions that were modified. If any of the Part 258 criteria are not actually restated in this Ordinance, they are nevertheless incorporated by reference and are applicable. If the Environmental Protection Agency (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 this Ordinance. Any specific provisions of this Ordinance which are more stringent than the Part 258 Criteria are applicable and controlling.
SECTION 1605. EFFECTIVE DATE
(A) This ordinance shall be effective fifteen (15) days after passage by the Tribal Council.
(B) This ordinance and any regulations enacted under Part 2 of this Ordinance shall be disseminated in writing to all tribal members that are residents of tribally owned or controlled housing units no less than fifteen (15) days before taking effect and shall at that time be attached as appendices to this Ordinance.
(C) No provision of the code shall be construed to be retroactive.
SECTION 1606. SEVERABILITY CLAUSE
If any term, provision, paragraph or condition of this ordinance, or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this ordinance or the application of the term, provision or condition to other parties or circumstances shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
SECTION 1607. SOVEREIGN IMMUNITY PRESERVED
Nothing in this Ordinance is intended to, nor should be interpreted as a waiver of the tribe's sovereign immunity from unconsented lawsuit, or as authorization for a claim for monetary damages from the Tribe.
Resolution No.: - -
DATE: , 2003
SUBJECT: ADOPT SOLID WASTE DISPOSAL ORDINANCE
WHEREAS: The Pit River Tribe is a federally recognized tribe composed of eleven autonomous bands located in Northeastern California since time immemorial; and
WHEREAS: The Pit River Tribe is governed by the Pit River Tribal Council, the body duly elected under the constitution of the Pit River Tribe, adopted August 16, 1987, and approved by the Assistant Secretary of Interior for Indian Affairs, December 3, 1987; and
WHEREAS: The Pit River Tribal Council is empowered by Article VII of the Constitution to enact all ordinances and resolutions to protect the health, peace, morals and general welfare of the Pit River Tribe and its members; and
WHEREAS: The Tribal Council recognizes that a considerable problem exists due to litter and illegal dumping along the roads and within the exterior boundaries of the Pit River Tribe, and specifically upon Indian lands within such boundaries, which pose a threat to the quality of the environment and the quality of life of the Tribal residents; and
WHEREAS: The failure to control litter and trash adversely affects the health and general welfare of the Tribe.
NOW THEREFORE BE IT RESOLVED, that the Solid Waste Disposal Ordinance is hereby adopted and shall be known as the Solid Waste Disposal Ordinance of the Pit River Tribe.
BE IT FURTHER RESOLVED, THAT ANY Ordinance, Article, Code, Resolution, or Rule in conflict with the Ordinance in whole or in part, also is rescinded to the extent that such conflict exists.
ADOPT SOLID WASTE DISPOSAL ORDINANCE
DATE: , 2003
Resolution No.: - -
I, the undersigned Tribal Vice-Chairperson, Jessica Jim, of the Pit River Tribe, do hereby certify the Pit River Tribal Council is composed of eleven autonomous bands of which ___ were present, constituting a quorum at a specially called, noticed, convened and held meeting this ____ day of _____________, 2003, and the resolution was adopted by a vote of ____for, ____against, and ____abstaining, and that said resolution has not been rescinded in any way.
Jessica Jim, Vice Chairperson
Tribal Secretary, June Avelar
Council Member Signatures:
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