[Adopted 6-2-1994 by Ord. No. 94-03]
A.
The Menominee Tribal Legislature adopts this article regarding hazardous materials transportation under the authority of the Menominee Constitution, Article III, and Bylaw II, § 2(i).
B.
The provisions of this article, effective May 19,
1994, are authorized under the Hazardous Materials Transportation
Uniform Safety Act of 1990 (HMTUSA), Pub. L. No. 101-615, 104 Stat.
3245 (1990) (codified as amended at 49 U.S.C. § 5101 et
seq.).
The purpose of this article is to provide a
system to regulate the transportation of hazardous materials throughout
the Menominee Indian Reservation in order to provide for the safe
passage of hazardous materials in a manner which protects the environment,
health and safety of all persons subject to the Tribe's jurisdiction.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise. Definitions set forth in this section supersede the definitions which may appear in Title 49 of the Code of Federal Regulations adopted by reference in § 361-6.
The Chairperson of the Legislature of the Menominee Indian
Tribe of Wisconsin.
Any portable device in which a hazardous material is stored,
transported, treated or otherwise handled.
A document setting out an organized, planned, and coordinated
course of action to be followed in case of a fire, explosion, or release
of hazardous material constituents which could threaten human health
or the environment.
The United States Department of Transportation (DOT).
The accidental or intentional spilling, leaking, pumping,
pouring, emitting, emptying, or dumping of hazardous material into
or on any land or water.
A container that has had its contents removed by purging
or cleaning, or both.
The tribal agency that administers environmental codes and
regulations.
Any department, agency, or other instrumentality of the federal
government, any independent agency or establishment of the federal
government, including any government corporation, and the Government
Printing Office.
The weight of a packaging, cargo tank, container or cylinder,
plus the weight of its contents.
A substance or material, including a hazardous substance,
which has been determined by the Secretary of Transportation to be
capable of posing an unreasonable risk to health, safety, and property
when transported in commerce and which has been so designated.
A hazardous material meeting the definition of a hazardous
substance in 49 CFR 171.8.
A hazardous material meeting the definition of a hazardous
waste in 49 CFR 171.8.
A highway, street or other public way.
A common carrier by motor vehicle; a contract carrier by
motor vehicle; a private carrier by motor vehicle; or a person who,
as owner, lessee, or other possessor of one or more vehicles, directs
or controls the transportation of hazardous material either for his
or her own account or for hire.
A vehicle, machine, tractor, trailer, semitrailer or a combination
thereof propelled or drawn by mechanical power and used upon the highways
in the transportation of hazardous material.
The net weight of the contents of a package, cargo tank,
container or cylinder. The term does not include the weight of the
packaging, cargo tank, container or cylinder.
The temporary or permanent prohibition of a vehicle or operator
from further service because of one or more violations regarding the
safety of either.
An individual, firm, copartnership, corporation, company,
association, joint-stock association, including any trustee, receiver,
assignee, or similar representative thereof, or government, Indian
tribe, or agency or instrumentality of any government or Indian tribe
when it offers hazardous materials for transportation in commerce
or transports hazardous materials in furtherance of a commercial enterprise,
but such term does not include:
A Menominee tribal employee authorized by the Tribe to inspect
vehicles, drivers, documents, equipment, loads or cargo.
The DOT agency that administers HMTUSA.
All land within the exterior boundaries of the Menominee
Indian Reservation and other lands held in trust by the United States
for the Menominee Indian Tribe of Wisconsin or any of its members.
Any movement of property by any mode and loading or unloading.
A person engaged in transportation and storage incidental
thereto.
The Legislature of the Menominee Indian Tribe of Wisconsin.
The Menominee Indian Tribe of Wisconsin.
A.
At the earliest practicable moment, each carrier who transports hazardous materials (including hazardous wastes) shall give notice in accordance with Subsection B of this section after each incident that occurs during the course of transportation (including loading, unloading and temporary storage) in which:
(1)
As a direct result of hazardous materials:
(a)
A person is killed;
(b)
A person receives injuries requiring his or
her hospitalization;
(c)
Estimated carrier or other property damage exceeds
$50,000;
(d)
An evacuation of the general public occurs lasting
one or more hours;
(e)
One or more major transportation arteries or
facilities are closed or shut down for one hour or more; or
(f)
The operational flight pattern or routine of
an aircraft is altered;
(2)
Fire, breakage, spillage, or suspected radioactive
contamination occurs involving shipment of radioactive material (see
also 49 CFR 174.45, 175.45, 176.48, and 177.807);
(3)
Fire, breakage, spillage, or suspected contamination
occurs involving shipment of etiologic agents; or
(4)
A situation exists of such a nature (e.g., a continuing danger to life exists at the scene of the incident) that, in the judgment of the Tribe or the carrier, it should be reported to the Environmental Services Department and DOT even though it does not meet the criteria of Subsection A(1), (2) or (3) of this section.
C.
Notice involving etiologic agents shall be given to
the Centers for Disease Control, United States Public Health Service,
Atlanta, Georgia (404) 633-5313, in place of the notice to the Department
or (toll call) at (202) 267-2675. Each notice must include the following
information:
(1)
Name of reporter.
(2)
Name and address of carrier represented by reporter.
(3)
Phone number where reporter can be contacted.
(4)
Date, time, and location of incident.
(5)
The extent of injuries, if any.
(6)
Classification, name, and quantity of hazardous materials
involved, if such information is available.
(7)
Type of incident and nature of hazardous material
involvement and whether a continuing danger to life exists at the
scene.
D.
Each carrier making a report under this section shall
also make the report required by 49 CFR 171.16. A copy of the report
should be filed with the Menominee Indian Tribe.
The Tribe incorporates by reference the following
portions of Title 49 of the Code of Federal Regulations, but only
as they exist as of the date of adoption of this article exclusive
of future amendments:
A.
Oil Spill Prevention and Response Plans, 58 Fed. Reg.
33,304 (1993) (to be codified at 49 CFR 130). Any document of the
response plan filed with the DOT must also be filed with the Tribe.
B.
Part 171, General Information, Regulations, and Definitions,
exclusive of 49 CFR § 171.15.
C.
Part 172, Hazardous Materials Table, Special Provisions,
Hazardous Materials Communications Requirements, Emergency Response
Information and Training Requirements.
D.
Part 173, Shippers General Requirements for Shipments
and Packagings.
E.
Part 174, Carriage by Rail.
F.
Part 175, Carriage by Aircraft.
G.
Part 176, Carriage by Vessel.
H.
Part 177, Carriage by Public Highway.
I.
Part 178, Specifications for Packagings.
J.
Part 179, Specifications for Tank Cars.
K.
Part 180, Continuing Qualification and Maintenance
of Packagings.
[Amended 10-17-2013 by Ord. No. 13-39]
A.
Motor carrier registration. Motor carrier registration shall be completed
as follows:
(1)
General. Motor carriers transporting hazardous materials in quantities
requiring the vehicle to display placarding under 49 CFR 177 shall
register with the Tribe each calendar year between January 1 and January
31.
(2)
Forms. Registration shall be made by each carrier on forms prescribed
and furnished by the Tribe. Forms may be obtained upon request from
the Menominee Indian Tribe, Environmental Services Department, P.O.
Box 910, Keshena, WI 54135, or by calling (715) 799-3096.
B.
Fees. Annual registration fee for hazardous materials transporter
applicants is $37.50. Annual registration fee for hazardous waste
transporter applicants is $200. One-day trip permits are $20. Container
inspection fees are $35. Tank inspection fees are $45. Power unit
inspection fees are $25 (MIT 94-3-3). The Tribe will waive inspection
fees when the carrier can demonstrate that the container, tank or
power unit has successfully passed inspection in another jurisdiction
within the last 12 months.
C.
Towing of vehicles. No motor vehicle transporting hazardous materials
in a quantity requiring the motor vehicle to display markings or placarding,
as required by 49 CFR 171.1 and 171.2, may be towed on a highway except
to remove the motor vehicle and cargo to the nearest place of safety,
in the judgment of the carrier or its representative after consultation
with police, fire or other emergency personnel. The motor vehicle
may not be moved until the hazardous materials are stable unless failure
to do so would constitute a threat to persons or property. For requirements
regarding accidents involving specific types of hazardous materials,
see 49 CFR 177.854 (relating to vehicles and shipments in transit;
accidents).
D.
Extended loads. No person may transport hazardous material on a vehicle
when the load extends beyond the sides, front or rear of the cargo-carrying
compartment of the vehicle.
E.
Unlawful transportation. No person may transport, by vehicle on a
highway, hazardous material in a reckless manner or under conditions
that will unreasonably endanger persons or property.
F.
Weight limitations. Vehicles subject to this chapter shall comply
with the weight limitations set forth by the United States DOT and
the Environmental Services Department.
G.
Railroad crossings. A vehicle transporting hazardous material must
stop at all railroad crossings.
H.
Presentation of documents. A driver of a vehicle transporting a hazardous
material on a highway shall present upon request to a qualified tribal
employee all documents required by this article to be in his possession.
A.
Jurisdiction. Any enforcement procedures pursuant
to this article will be conducted in Tribal Court.
B.
Civil fine.
Any person who is determined by the Tribe, after notice and opportunity
for a hearing, to have knowingly committed an act which is a violation
of a provision of this article shall be liable to the Tribe for a
civil fine.
C.
Fines and assessments. The Tribe provides the following
fines and assessments:
(1)
Issuance of an order directing compliance with this
article. The Tribal Court shall have jurisdiction to enforce such
orders.
(2)
Minimum fine and maximum civil forfeiture.
(a)
Whoever knowingly commits an act which is a
violation of any order or regulation applicable to any person who
transports or causes to be transported or shipped hazardous materials
shall be subject to the following fines:
[1]
A minimum fine of $250 per violation.
[2]
A maximum civil forfeiture of $25,000 per violation, and if such
violation is a continuing one, each day of violation constitutes a
separate offense, per day (other than those relating to container
manufacturing which are limited to a civil forfeiture of $25,000 per
violation).
(b)
In determining the amount of any such fine,
the Tribe will consider seven criteria:
[1]
Nature and circumstance of violation.
[2]
Extent and gravity of violation.
[3]
Degree of respondent's culpability.
[4]
Respondent's history of prior offenses.
[5]
Respondent's ability to pay.
[6]
Effect of penalty on respondent's ability to
stay in business.
[7]
Such other matters as justice may require (especially
corrective actions).
(3)
Criminal penalties for willful violations of up to
$5,000 or one year of imprisonment, or both.
D.
Hearing.
Formal administrative hearing on the record is not required by the
Hazardous Materials Transportation Act (HMTA) but is available at
the option of the alleged violator.
G.
Other actions.
(1)
The Tribal Attorney may bring an action in Tribal
Court for equitable relief to redress a violation by any person of
a provision of this article. The Tribal Court shall have jurisdiction
to determine such actions and may grant such relief as is necessary
or appropriate, including mandatory or prohibitive injunctive relief,
interim, equitable relief and punitive damages.
(2)
If the Tribe has reason to believe that an imminent
hazard exists, it may petition the Tribal Court for an order suspending
or restricting the transportation of the hazardous material responsible
for such imminent hazard or for such other order as is necessary to
eliminate or ameliorate such imminent hazard.
The owner or owners of the hazardous materials
and the transporter or transporters of the hazardous materials shall
be strictly liable, jointly and severally, for any injury resulting
from transporting said hazardous materials through the Menominee Reservation
or on tribal land wherever situated.
