Chapter 10.04
HAZARDOUS SUBSTANCES CONTROL ACT
Sections:
10.04.010 Declaration of policy.
10.04.030 Department’s powers and duties.
10.04.040 Standard of liability.
10.04.070 Toxics Control Account.
10.04.010 Declaration of policy.
(a) Each person has a fundamental and inalienable right to a healthful environment, and each person has a responsibility to preserve and enhance that right. The beneficial stewardship of the land, air, and waters of the Reservation is a solemn obligation of the present generation for the benefit of future generations.
(b) A healthful Reservation environment is threatened by the irresponsible use and disposal of hazardous substances. Hazardous waste sites are becoming prevalent throughout the United States, and more will be created if current waste practices continue. Hazardous waste sites threaten water resources, including those used for public drinking water. The costs of eliminating these threats in many cases are beyond the financial means of our Tribal government. The main purpose of this Act is to provide for the clean up of all hazardous substances sites and to prevent the creation of future hazards due to improper disposal of hazardous substances into the Reservation’s air, land and waters.
(c) Because it is often difficult or impossible to allocate responsibility among persons liable for hazardous waste sites and because it is essential that sites be cleaned up well and expeditiously, each responsible person should be liable jointly and severally. [Res. 090792-F (07/09/92) § 1]
10.04.020 Definitions.
(a) “Council” means the Tribal Council of the Puyallup Tribe of Indians.
(b) “Council Attorney” means the attorney authorized by the Council to carry out the duties of the Council Attorney as described in the Act.
(c) “Department” means the Natural Resources Department.
(d) “Director” means the Director of the Department or the Director’s designee.
(e) “Facility” means (1) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, vessel, or aircraft, or (2) any site or area where a hazardous substance, other than a consumer product in consumer use, has been deposited, stored, disposed of, or placed, or otherwise come to be located.
(f) “Federal cleanup law” means the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq.
(g) “Hazardous substance” means:
(1) Any “dangerous waste,” defined as any discarded, useless, unwanted, or abandoned substances, including but not limited to certain pesticides, or any residues or containers of such substances which are disposed of in such quantity or concentration as to pose a substantial present or potential hazard to human health, wildlife, or the environment because such wastes or constituents or combinations of such wastes:
(A) Have short-lived, toxic properties that may cause death, injury, or illness or have mutagenic, teratogenic, or carcinogenic properties; or
(B) Are corrosive, explosive, flammable, or may generate pressure throughout decomposition or other means;
(2) Any “extremely hazardous waste,” defined as any dangerous waste which:
(A) Will persist in a hazardous form for several years or more at a disposal site and which in its persistent form:
(i) Presents a significant environmental hazard and may be concentrated by living organisms through a food chain or may affect the genetic makeup of man or wildlife, and
(ii) Is highly toxic to man or wildlife;
(B) If disposed of at a disposal site in such quantities as would present an extreme hazard to man or the environment;
(3) Any liquid, solid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any of the characteristics of dangerous waste or extremely hazardous waste;
(4) Any substance that, on March 1, 1989, is a hazardous substance under Section 101(14) of the federal cleanup law, 42 U.S.C. 9601(14);
(5) Petroleum or petroleum products; and
(6) Any substance or category of substances, including solid waste decomposition products, determined by the Director by rule to present a threat to human health or the environment if released into the environment.
The term “hazardous substance” does not include any of the following when contained in an underground storage tank from which there is not a release: crude oil or any fraction thereof or petroleum, if the tank is in compliance with all applicable federal and Tribal law.
(h) “Owner” or “operator” means:
(1) Any person with any ownership interest in the facility or who exercises any control over the facility; or
(2) In the case of an abandoned facility, any person who had owned, or operated, or exercised control over the facility any time before its abandonment;
The term does not include:
(A) An agency of the Council which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or circumstances in which the Council involuntarily acquires title. This exclusion does not apply to an agency of the Council which has caused or contributed to the release or threatened release of a hazardous substance from the facility; or
(B) A person who, without participating in the management of a facility, holds indicia of ownership primarily to protect the person’s security interest in the facility.
(i) “Person” means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, state government agency, unit of local government, federal government agency, Tribal governmental agency, or Indian tribe.
(j) “Potentially liable person” means any person whom the Department finds, based on credible evidence, to be liable under PTC 10.04.040. The Department shall give notice to any such person and allow an opportunity for comment before making the finding, unless an emergency requires otherwise.
(k) “Public notice” means, at a minimum, adequate notice mailed to all persons who have made timely request of the Department and to persons residing in the potentially affected vicinity of the proposed action; mailed to appropriate news media; published in the newspaper of largest circulation in the area of the proposed action; and opportunity for interested persons to comment.
(l) “Release” means any intentional or unintentional entry of any hazardous substance into the environment, including but not limited to the abandonment or disposal of containers of hazardous substances.
(m) “Remedy” or “remedial action” means any action or expenditure consistent with the purposes of this Act to identify, eliminate, clean up, or minimize any threat or potential threat posed by hazardous substances to human health or the environment including any investigative and monitoring activities with respect to any release or threatened release of a hazardous substance and any health assessments or health effects studies conducted in order to determine the risk or potential risk to human health.
(n) “Tribal Court” shall mean the Tribal Court of the Puyallup Tribe of Indians. [Amended during 2010 recodification; Res. 090792-F (07/09/92) § 2]
10.04.030 Department’s powers and duties.
(a) The Department may exercise the following powers in addition to any other powers granted by Tribal or federal law:
(1) Investigate, provide for investigating, or require potentially liable persons to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature or extent of any release or threatened release. If there is a reasonable basis to believe that a release or threatened release of a hazardous substance may exist, the Department’s authorized employees, agents, or contractors may enter upon any property and conduct investigations. The Department shall give reasonable notice before entering property unless an emergency prevents such notice. The Department may by subpoena require the attendance or testimony of witnesses and the production of documents or other information that the Department deems necessary;
(2) Conduct, provide for conducting, or require potentially liable persons to conduct remedial actions (including investigations under subsection (a)(1) of this section) to remedy releases or threatened releases of hazardous substances. In carrying out such powers, the Department’s authorized employees, agents, or contractors may enter upon property. The Department shall give reasonable notice before entering property unless an emergency prevents such notice. In conducting, providing for, or requiring remedial action, the Department shall give preference to permanent solutions to the maximum extent practicable and shall provide for or require adequate monitoring to ensure the effectiveness of the remedial action;
(3) Indemnify contractors retained by the Department for carrying out investigations and remedial actions, but not for any contractor’s reckless or willful misconduct;
(4) Carry out all Tribal programs authorized under the federal cleanup law, the Resource, Conservation, and Recovery Act, 42 U.S.C. 6901 et seq., as amended, and other federal laws;
(5) Classify substances as hazardous substances for purposes of PTC 10.04.020; and
(6) Take any other actions necessary to carry out the provisions of this Act, including the power to adopt rules under the Tribal Administrative Procedure Act (“APA”), Chapter 2.08 PTC.
(b) The Department shall immediately implement all provisions of this Act to the maximum extent practicable, including investigative and remedial actions where appropriate. The Department shall adopt, and thereafter enforce, rules under the APA (Chapter 2.08 PTC) to:
(1) Provide for (A) public notice of and comment on the development of investigative plans or remedial plans for releases or threatened releases, and (B) concurrent public notice of and comment on all compliance orders, enforcement orders, or notices of violation;
(2) Establish reasonable deadlines for initiating an investigation of a hazardous waste site after the Department receives information that the site may pose a threat to human health or the environment and other reasonable deadlines for remedying releases or threatened releases at the site; and
(3) Publish and periodically update minimum cleanup standards for remedial actions at least as stringent as the cleanup standards under Section 121 of the federal cleanup law, 42 U.S.C. 9621, and at least as stringent as all applicable Tribal and federal laws, including health-based standards under Tribal and federal law.
(c) The Department shall establish a program to identify potential hazardous waste sites and to encourage persons to provide information about hazardous waste sites. [Res. 090792-F (07/09/92) § 3]
10.04.040 Standard of liability.
(a) Except as provided in subsection (c) of this section, the following persons are liable with respect to a facility:
(1) The owner or operator of the facility;
(2) Any person who owned or operated the facility at the time of disposal or release of the hazardous substances;
(3) Any person who owned or possessed a hazardous substance and who by contract, agreement, or otherwise arranged for disposal or treatment of the hazardous substance at the facility, or arranged with a transporter for transport for disposal or treatment of the hazardous substances at the facility, or otherwise generated hazardous wastes disposed of or treated at the facility;
(4) Any person who accepts or accepted any hazardous substance for transport to a disposal, treatment, or other facility selected by such person from which there is a release or a threatened release for which remedial action is required, unless such facility, at the time of disposal or treatment, could legally receive such substance; and
(5) Any person who both sells a hazardous substance and is responsible for written instructions for its use if (A) the substance is used according to the instructions and (B) the use constitutes a release for which remedial action is required at the facility.
(b) Each person who is liable under this section is strictly liable, jointly and severally, for all remedial action costs and for all natural resource damages resulting from the releases or threatened releases of hazardous substances. The Council’s Attorney, at the request of the Department, is empowered to recover all costs and damages from persons liable therefor.
(c) The following persons are not liable under this section:
(1) Any person who can establish that the release or threatened release of a hazardous substance for which the person would be otherwise responsible was caused solely by:
(A) An act of God;
(B) An act of war; or
(C) An act or omission of a third party (including but not limited to a trespasser) other than (i) an employee or agent of the person asserting the defense, or (ii) any person whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the person asserting this defense to liability. This defense only applies where the person asserting the defense has exercised the utmost care with respect to the hazardous substance, the foreseeable acts or omissions of the third party, and the foreseeable consequences of those acts or omissions;
(2) Any person who is an owner, past owner, or purchaser of a facility and who can establish by a preponderance of the evidence that at the time the facility was acquired by the person, the person had no knowledge or reason to know that any hazardous substance, the release or threatened release of which has resulted in or contributed to the need for the remedial action, was released or disposed of on, in, or at the facility. This subsection (c)(2) is limited as follows:
(A) To establish that a person had no reason to know, the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property, consistent with good commercial or customary practice in an effort to minimize liability. Any court interpreting this subsection (c)(2) shall take into account any specialized knowledge or experience on the part of the person, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection;
(B) The defense contained in this subsection (c)(2) is not available to any person who had actual knowledge of the release or threatened release of a hazardous substance when the person owned the real property and who subsequently transferred ownership of the property without first disclosing such knowledge to the transferee;
(C) The defense contained in this subsection (c)(2) is not available to any person who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance at the facility;
(3) Any natural person who uses a hazardous substance lawfully and without negligence for any personal or domestic purpose in or near a dwelling or accessory structure when that person is:
(A) A resident of the dwelling;
(B) A person who, without compensation, assists the resident in the use of the substance; or
(C) A person who is employed by the resident, but who is not an independent contractor;
(4) Any person who, for the purpose of growing food crops, applies pesticides or fertilizers without negligence and in accordance with all applicable Tribal and federal laws and regulations.
(d) There may be no settlement by the Council with any person potentially liable under this Act except in accordance with this subsection.
(1) The Council may agree to a settlement with any potentially liable person only if the Department finds, after public notice and hearing, that the proposed settlement would lead to a more expeditious cleanup of hazardous substances in compliance with cleanup standards under PTC 10.04.030(b)(3) and with any remedial orders issued by the Department. Whenever practicable and in the public interest, the Council Attorney may expedite such a settlement with a person whose contribution is insignificant in amount and toxicity.
(2) A settlement agreement under this subsection shall be entered as a consent decree issued by the Tribal Court.
(3) A settlement agreement may contain a covenant not to sue only of a scope commensurate with the settlement agreement in favor of any person with whom the Council Attorney has settled under this section. Any covenant not to sue shall contain a reopener clause which requires the Tribal Court to amend the covenant not to sue if factors not known at the time of entry of the settlement agreement are discovered and present a previously unknown threat to human health or the environment.
(4) A party who has resolved its liability to the Council under this subsection shall not be liable for claims for contribution regarding matters addressed in the settlement. The settlement does not discharge any of the other liable parties but it reduces the total potential liability of the others to the Council by the amount of the settlement.
(e) Nothing in this Act affects or modifies in any way any person’s right to seek or obtain relief under common law or other applicable laws, including but not limited to damages for injury or loss resulting from a release or threatened release of a hazardous substance. No settlement by the Department or remedial action ordered by the Tribal Court or the Department affects any person’s right to obtain a remedy under common law or other applicable laws. [Res. 090792-F (07/09/92) § 4]
10.04.050 Enforcement.
(a) With respect to any release, or threatened release, for which the Department does not conduct or contract for conducting remedial action and for which the Department believes remedial action is in the public interest, the Director shall issue orders requiring potentially liable persons to provide the remedial action. Any liable person who refuses, without sufficient cause, to comply with an order of the Director is liable in an action brought by the Council Attorney for:
(1) Up to three times the amount of any costs incurred by the Council as a result of the party’s refusal to comply; and
(2) A civil penalty of up to $25,000 for each day the party refuses to comply.
The treble damages and civil fines under this subsection apply to all recovery actions filed on or after the date this Act is enacted and adopted by the Council.
(b) (1) Any person who receives and complies with an order issued under subsection (a) of this section may, within 60 days after completion of the required action, petition the Director for reimbursement for the reasonable costs of such action, plus interest. Any interest payable under the subsection shall accrue on the amounts expended from the date of expenditure at the same rate specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of Chapter 98 of Title 26 of the United States Code.
(2) If the Director refuses to grant all or part of a petition made under this subsection (b), the petitioner may within 30 days of receipt of such refusal file an action against the Council in the Tribal Court seeking reimbursement.
(3) Except as provided in subsection (b)(4) of this section, to obtain reimbursement, the petitioner shall establish by a preponderance of the evidence that it is not liable under PTC 10.04.040 for remedial action costs or natural resource damages resulting from a release or threatened release of hazardous substances and that the costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order.
(4) A petitioner who is liable for remedial action costs under PTC 10.04.040 may also recover its reasonable costs of response to the extent that it can demonstrate, on the administrative record, that the Director’s decision in selecting the remedial action ordered was arbitrary and capricious or was not otherwise in accordance with the law. Reimbursement awarded under this subsection shall include all response costs incurred by the petitioner pursuant to portions of the order found to be arbitrary and capricious or otherwise not in accordance with law.
(c) The Council Attorney shall seek, by filing an action if necessary, to recover the amounts spent by the Department for investigative and remedial actions and orders, including amounts spent prior to the date this Act is enacted and adopted by the Council.
(d) The Council Attorney may bring an action to secure such relief as is necessary to protect human health and the environment under this Act.
(e) Civil actions under this section and PTC 10.04.060 shall be brought in Tribal Court. [Res. 090792-F (07/09/92) § 5]
10.04.060 Judicial review.
The Department’s investigative and remedial decisions under PTC 10.04.030 and 10.04.050 and its decisions regarding liable persons under PTC 10.04.020 and 10.04.040 shall be reviewable exclusively in Tribal Court and only at the following times:
(a) In a cost recovery suit under PTC 10.04.050(c);
(b) In a suit by the Department to enforce an order or seek a civil penalty under this Act;
(c) In a suit to determine a person’s liability to comply with an order issued under PTC 10.04.050(a) if brought within the time provided by PTC 10.04.050(b); and
(d) In a suit by the Department to compel investigative or remedial action. The court shall uphold the Department’s actions unless they were arbitrary and capricious. [Res. 090792-F (07/09/92) § 6]
10.04.070 Toxics Control Account.
(a) The Tribal Toxics Control Account is hereby created in the Tribal Treasury.
(b) The following monies shall be deposited into the Toxics Control Account:
(1) The costs of remedial actions recovered under this Act;
(2) Penalties collected or recovered under this Act; and
(3) Any other money appropriated or transferred to the Account by the Council.
Monies in the Account may be used only to carry out the purposes of this Act, including but not limited to the following activities:
(A) The hazardous waste cleanup program required under this Act;
(B) Council matching funds required under any federal law;
(C) Tribal programs for the safe reduction, recycling, or disposal of hazardous wastes from households, small businesses, and agriculture;
(D) Hazardous materials emergency response training; and
(E) Water and environmental health protection and monitoring programs.
(c) Monies in the Toxics Control Account may be spent only after appropriation by the Council. All earnings from investment of balances in the Account shall be credited to the Account.
(d) One percent of the monies deposited into the Toxics Control Account shall be allocated only for public participation grants to persons who may be adversely affected by a release or threatened release of a hazardous substance and to not-for-profit public interest organizations. The primary purpose of these grants is to facilitate the participation by persons and organizations in the investigation and remedying of releases or threatened releases of hazardous substances and to implement the Council’s solid and hazardous waste management priorities. No grant may exceed $25,000 though it may be renewed annually. Monies appropriated for public participation which are not expended at the close of any Tribal fiscal year shall revert to the Tribal Toxics Control Account.
(e) The Department shall adopt rules for grant issuance and performance. [Res. 090792-F (07/09/92) § 7]
10.04.080 Short title.
This Act shall be known as “the Tribal Hazardous Substances Control Act.” [Res. 090792-F (07/09/92) § 8]
10.04.090 Captions.
As used in this Act, captions constitute no part of the law. [Res. 090792-F (07/09/92) § 9]
10.04.100 Construction.
The provisions of this Act are to be liberally construed to effectuate the policies and purposes of this Act. In the event of conflict between the provisions of this Act and any other act, the provisions of this Act shall govern. [Res. 090792-F (07/09/92) § 10]