[Adopted 2-4-1988 by Ord. No. 87-28]
The purpose of this article is to establish groundwater quality standards for substances detected in or having a reasonable probability of entering the groundwater resources of the Menominee Reservation; to specify scientifically valid procedures for determining if a numerical standard has been attained or exceeded; to specify procedures for establishing points of standards application and for evaluating groundwater monitoring data; to establish ranges of responses the Tribe may require if a groundwater standard is attained or exceeded; and to provide for exemptions for facilities, practices and activities regulated by the Tribe.
This article applies to all facilities, practices and activities which may affect groundwater quality. Health-related enforcement standards adopted in § 562-6A also apply to bottled drinking water manufactured, bottled, sold or distributed on the Reservation and to determining eligibility for the well compensation program under § 281.75, Wis. Stats. The Tribe may promulgate new rules or amend rules governing facilities, practices or activities if the Tribe determines that the amendment or promulgation of rules is necessary to protect public health, safety or welfare. The requirements of this article are in addition to the requirements of any other chapters and rules.
These rules under this article shall be governed by Article I (Jurisdiction) of the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin, whereby the governmental powers of the Menominee Indian Tribe of Wisconsin, a federally recognized sovereign Indian tribe, shall be consistent with applicable federal law and shall extend to all persons and subjects, to all lands and other property, including natural resources, and to all waters and air space within the exterior boundaries of the Menominee Reservation, including any land which may hereafter be added to the Reservation under any law of the United States. The governmental powers of the Menominee Indian Tribe shall, consistent with applicable federal law, also extend outside the exterior boundaries of the Reservation to any persons, subjects, or real property which is, or may hereafter be, included within the jurisdiction of the Tribe under any law of the United States. Any person who violates any regulation or law set forth under this article shall be prosecuted under tribal law whereby, under Article III, Section 2 of the Tribal Constitution and Bylaws (Powers of the Tribal Judiciary), the Tribal Judiciary shall be vested with all judicial powers of the Tribe, including the power to decide cases in which a person is accused by the Tribe of committing an offense against the laws of the Tribe. The powers granted to the judiciary by this section shall include judicial powers restored or granted by the Tribe by any law of the United States or other competent authority.
In accordance with a Memorandum of Understanding between the Menominee Indian Tribe, the State of Wisconsin Department of Natural Resources and the United States Environmental Protection Agency regarding the implementation of groundwater quality rules and regulations on the Menominee Reservation, the Menominee Tribe, as a sovereign nation and governing body for jurisdictional affairs on the Reservation, has full responsibility for all matters of tribal policy under this article. The Wisconsin Department of Natural Resources, as a neighboring government agency whose interests are served by the development of a strong tribal regulatory presence on the Reservation, will provide advice and technical assistance to the Tribe. All parties to the Memorandum will endeavor to establish and maintain close communication and coordination with each other, as they all share a common sense of purpose to protect precious natural resources from the threat of pollution.
As used in this article, the following terms shall have the meanings indicated:
ACCURACY
The closeness of a measured value to its generally accepted value or its value based upon an accepted reference standard.
ATTAIN or EXCEED
The concentration of a substance is determined to be equal to or greater than the preventive action limit or enforcement standard for that substance.
BACKGROUND WATER QUALITY or BACKGROUND CONCENTRATION
Groundwater quality at or near a facility, practice or activity which has not been affected by that facility, practice or activity.
CERTIFIED LABORATORY
A laboratory which performs tests for hire and which receives certification under § 299.11(7), Wis. Stats., or receives reciprocal recognition under § 299.11(5), Wis. Stats.
DESIGN MANAGEMENT ZONE
A three-dimensional boundary surrounding each regulated facility, practice or activity established under § 562-7B(5).
ENFORCEMENT STANDARD
A numerical value expressing the concentration of a substance in groundwater which is adopted under § 562-6A or B.
FACILITY, PRACTICE or ACTIVITY
Any source or potential source of a substance which is detected in or has a reasonable probability of entering the groundwater resources of the Reservation.
GROUNDWATER
Any of the waters of the Reservation occurring in a saturated subsurface geological formation of rock or soil.
INDICATOR PARAMETER
A substance for which a preventive action limit has been established under § 562-7A which is used to indicate the potential for a preventive action limit established under § 562-6A or B to be attained or exceeded and for which an enforcement standard has not been established under § 562-6A or B.
LIMIT OF DETECTION
The lowest concentration for an analytical test method and sample matrix at which the presence of a substance can be identified in an analytical sample, with a stated degree of confidence, regardless of whether the concentration of the substance in the sample can be quantified.
LIMIT OF QUANTITATION
The lowest concentration for an analytical test method and sample matrix at which the quantity of a particular substance can be measured with a stated degree of confidence.
MONITORING
All procedures used to collect data on groundwater, surface water or soils.
POINT OF STANDARDS APPLICATION
The specific location, depth or distance from a facility, activity or practice at which the concentration of a substance in groundwater is measured for purposes of determining whether a preventive action limit or an enforcement standard has been attained or exceeded.
PRECISION
The closeness of repeated measurements of the same parameter within a sample.
PREVENTIVE ACTION LIMIT
A numerical value expressing the concentration of a substance in groundwater which is adopted under § 562-6A or B or 562-7A.
PROPERTY BOUNDARY
The boundary of the total contiguous parcel of land owned by a common owner, regardless of whether public or private roads run through the parcel.
REGISTERED LABORATORY
A laboratory which is registered under § 299.11(8), Wis. Stats., or receives reciprocal recognition under § 299.11(5), Wis. Stats.
SUBSTANCE
Any solid, liquid, semisolid, dissolved solid or gaseous material, naturally occurring or man-made chemical, parameter for measurement of water quality or biological organism which, in its original form, or as a metabolite or a degradation or waste product, may decrease the quality of groundwater.
A. 
Public-health-related groundwater standards. The groundwater quality standards for substances of public health concern are listed in Table 1. Note: For all substances that have carcinogenic, mutagenic or teratogenic properties or interactive effects, the preventive action limit is 10% of the enforcement standard. The preventive action limit is 20% of the enforcement standard for all other substances that are of public health concern. Enforcement standards and preventive action limits for additional substances will be added to Table 1 as recommendations are developed pursuant to §§ 160.07, 160.13 and 160.15, Wis. Stats.
[Amended 4-4-2013 by Ord. No. 13-07]
Table 1
Public Health Groundwater Quality Standards
Substance1
Enforcement Standard
(micrograms per liter except as noted)
Preventive Action Limit
(micrograms per liter except as noted)
Acetochlor
7
0.7
Acetochlor ethane sulfonic acid + oxanilic acid (Acetochlor — ESA + OXA)
230
46
Acetone
9 mg/l
1.8 mg/l
Alachlor
2
0.2
Alachlor ethane sulfonic acid
20
4
(Alachlor — ESA)
Aldicarb
10
2
Aluminum
200
40
Ammonia (as N)
9.7 mg/l
0.97 mg/l
Antimony
6
1.2
Anthracene
3,000
600
Arsenic
10
1
Asbestos
7 million fibers per liter (MFL)
0.7 MFL
Atrazine, total chlorinated residues
32
0.32
Bacteria, total coliform
03
03
Barium
2 mg/l
0.4 mg/l
Bentazon
300
60
Benzene
5
0.5
Benzo(b)fluoranthene
0.2
0.02
Benzo(a)pyrene
0.2
0.02
Beryllium
4
0.4
Beta photon emitters
200
Boron
1,000
Bromodichloromethane
0.6
0.06
Bromoform
4.4
0.44
Bromomethane
10
1
Butylate
400
80
Cadmium
5
0.5
Carbaryl
40
4
Carbofuran
40
8
Carbon disulfide
1,000
200
Carbon tetrachloride
5
0.5
Chloramben
150
30
Chlordane
2
0.2
Chlorobenzene
100
100
Chlorodifluoromethane
7 mg/l
0.7 mg/l
Chloroethane
400
80
Chloroform
6
0.6
Chlorpyrifos
2
0.4
Chloromethane
30
3
Chromium (total)
100
10
Chrysene
0.2
0.02
Cobalt
40
8
Copper
1,300
130
Cyanazine
1
0.1
Cyanide, free4
200
40
Dacthal
70
14
Dalapon
200
200
1,2-Dibromoethane (EDB)
0.05
0.005
Dibromochloromethane
60
6
1,2-Dibromo-3-chloropropane (DBCP)
0.2
0.02
Dibutyl phthalate
1,000
100
Dicamba
300
60
1,2-Dichlorobenzene
600
60
1,3-Dichlorobenzene
600
120
1,4-Dichlorobenzene
75
15
Dichlorodifluoromethane
1,000
200
1,1-Dichloroethane
850
85
1,2-Dichloroethane
5
0.5
1,1-Dichloroethylene
7
0.7
1,2-Dichloroethylene (cis)
70
7
1,2-Dichloroethylene (trans)
100
20
Dichlormethane
5
5
2,4-Dichlorophenoxyacetic acid (2,4-D)
70
7
1,2-Dichloropropane
5
0.5
1,3-Dichloropropene (cis/trans)
0.4
0.04
Di (2-ethylhexyl) adipate
100
100
Di (2-ethylhexyl) phthalate
6
0.6
Dimethenamid/Dimethenamid-P
50
5
Dimethoate
2
0.4
2,4-Dinitrotoluene
0.05
0.005
2,6-Dinitrotoluene
0.05
0.005
Dinitrotoluene, total residues5
0.05
0.005
Dinoseb
7
1.4
1,4-Dioxane
3
0.3
Dioxin (2, 3, 7, 8-TCDD)
0.00003
0.000003
Diquat
20
20
Endrin
2
0.4
Endothall
100
100
EPTC
250
50
Ethylene dibromide
0.05
0.05
Ethylbenzene
700
140
Ethyl ether
1,000
100
Ethylene glycol
14 mg/l
2.8 mg/l
Fluoranthene
400
80
Fluorene
400
80
Fluoride
4 mg/l
0.8 mg/l
Fluorotrichloromethane
3,490
698
Formaldehyde
1,000
100
Glyphosate
700
700
Heptachlor
0.4
0.04
Heptachlor epoxide
0.2
0.02
Hexachlorobenzene
1
0.1
Hexachlorocyclopentadiene
50
50
n-Hexane
600
120
Hydrogen sulfide
30
6
Lead
15
1.5
Lindane
0.2
0.02
Manganese
300
60
Mercury
2
0.2
Methanol
5,000
1,000
Methoxychlor
40
4
Methylene chloride
5
0.5
Methyl ethyl ketone (MEK)
4 mg/l
0.8 mg/l
Methyl isobutyl ketone (MIBK)
500
50
Methyl tert-butyl ether (MTBE)
60
12
Metolachlor/s-Metolachlor
100
10
Metolachlor ethane sulfonic acid +
1.3 mg/l
0.26 mg/l
Oxamyl (Vydate)
200
200
Metribuzin
70
14
Molybdenum
40
8
Monochlorobenzene
100
20
Naphthalene
100
10
Nickel
100
20
Nitrate (as N)
10 mg/l
2 mg/l
Nitrate + Nitrite (as N)
10 mg/l
2 mg/l
Nitrite (as N)
1 mg/l
0.2 mg/l
N-Nitrosodiphenylamine
7
0.7
Pentachlorophenol (PCP)
1
0.1
Perchlorate
1
0.1
Phenol
2 mg/l
0.4 mg/l
Picloram
500
100
Polychlorinated biphenyls (PCBs)
0.03
0.003
Prometon
100
20
Propazine
10
2
Pyrene
250
50
Pyridine
10
2
Selenium
50
10
Silver
50
10
Simazine
4
0.4
Styrene
100
10
Tertiary butyl alcohol (TBA)
12
1.2
1,1,1,2-Tetrachloroethane
70
7
1,1,2,2-Tetrachloroethane
0.2
0.02
Tetrachloroethylene
5
0.5
Tetrahydrofuran
50
10
Thallium
2
0.4
Toluene
800
160
Toxaphene
3
0.3
1,2,4-Trichlorobenzene
70
14
1,1,1-Trichloroethane
200
40
1,1,2-Trichloroethane
5
0.5
Trichloroethylene (TCE)
5
0.5
2,4,5-Trichlorophenoxy-propionic acid (2,4,5-TP)
50
5
1,2,3-Trichloropropane
60
12
Trifluralin
7.5
0.75
Trimethylbenzenes (1,2,4- and 1,3,5- combined)
480
96
Vanadium
30
6
Vinyl chloride
0.2
0.02
Xylene4
2 mg/l
0.4 mg/l
NOTES:
1
Appendix 1 contains Chemical Abstract Service (CAS) registry numbers and trade names for most substances listed in Table 1.
2
Total chlorinated atrazine residues includes parent compound and the following metabolites of health concern: 2-chloro-4-amino-6-isopropylamino-s-triazine (formerly deethylatrazine), 2-chloro-4-amino-6-ethylamino-5-s-triazine (formerly deisopropylatrazine) and 2-chloro-4, 6-diamino-s-triazine (formerly diaminoatrazine).
3
Total coliform bacteria may not be present in any 100 ml sample using either the membrane filter (MF) technique, the presence-absence (P-A) coliform test, the minimal medium ONPG-MUG (MMO-MUG) test or not present in any 10 ml portion of the 10 tube multiple tube fermentation (MTF) technique.
4
"Cyanide, free" refers to the simple cyanides (HCN, CN-) and/or readily dissociable metal-cyanide complexes. Free cyanide is regulatorily equivalent to cyanide quantified by approved analytical methods for "amenable cyanide" or "available cyanide."
5
Dinitrotoluene, total residues includes the dinitrotoluene (DNT) isomers: 2,3-DNT, 2,4-DNT, 2,6-DNT, 3,4-DNT, and 3,5-DNT.
6
Xylene includes mets-, ortho-, and para-xylene combined.
B. 
Public-welfare-related groundwater standards. The groundwater quality standards for substances of public welfare concern are listed in Table 2. Note: For each substance of public welfare concern, the preventive action limit is 50% of the established enforcement standard.
Table 2
Public Welfare Groundwater Quality Standards
Substance
Enforcement Standard
(milligrams per liter except as noted)
Preventive Action Limit
(milligrams per liter except as noted)
Chloride
250
125
Color
15 color units
7.5 color units
Copper
1.0
0.5
Foaming agents MBAS (Methylene-Blue Active Substances)
0.5
0.25
Iron
0.3
0.15
Manganese
0.05
0.025
Odor
3 (Threshold Odor No.)
1.5 (Threshold Odor No.)
Sulfate
250
125
Total dissolved solids (TDS)
500
250
Zinc
5
2.5
C. 
Statistical procedures.
(1) 
If a preventive action limit or an enforcement standard for a substance listed in Table 1 or 2 or a preventive action limit for an indicator parameter established according to § 562-7A(2) is attained or exceeded at a point of standards application:
(a) 
The owner or operator of the facility, practice or activity at which a standard is attained or exceeded shall notify the Tribe that a standard has been attained or exceeded; and
(b) 
The Tribe shall require a remedial response in accordance with § 562-7. No remedial response shall be required if it is demonstrated to the satisfaction of the Tribe that a scientifically valid determination cannot be made that the preventive action limit or enforcement standard has been attained or exceeded based on consideration of sampling procedures or laboratory precision and accuracy, using the statistical procedures specified in Subsection C(2).
(2) 
In determining if a preventive action limit or enforcement standard is attained or exceeded or if a change in the concentration of a substance has occurred, the Tribe shall utilize the most scientifically valid of the following statistical procedures which will provide a ninety-five-percent level of confidence:
(a) 
Student t-test;
(b) 
Temporal or spatial trend analysis; or
(c) 
Other scientifically valid statistical analyses which are appropriate for the data being considered.
(3) 
In addition to Subsection C(2), the following apply when a preventive action limit or enforcement standard is below the limit of quantitation:
(a) 
If a substance is not detected in a sample and the limit of detection is higher than the preventive action limit or enforcement standard for that substance, the preventive action limit or enforcement standard shall be considered not to have been attained or exceeded.
(b) 
If a substance is reported to be present in a sample above the limit of detection but below the limit of quantitation, and if the preventive action limit or enforcement standard for that substance is below the limit of detection, the preventive action limit or enforcement standard shall be considered to have been attained or exceeded only if the presence of that substance has been confirmed by a sufficient number of analyses of multiple samples and use of an appropriate statistical test under Subsection C(2).
(c) 
The owner or operator of the facility, practice or activity shall report the limit of detection and limit of quantitation with the sample results when requested by the Tribe.
D. 
Monitoring and laboratory data requirements.
(1) 
All water quality samples collected to determine compliance with this article, except field analyses for pH, specific conductance, and temperature, shall be analyzed by a laboratory certified or registered under § 299.11, Wis. Stats., and rules adopted under that section. The results of the analysis shall be submitted to the Tribe. This subsection does not require the submission of groundwater monitoring data which is collected voluntarily and which is not being collected to determine compliance with this article. The samples shall be collected in accordance with procedures specified by the Tribe or, where no procedures are specified, in accordance with published sampling procedures. Note: Published sampling procedures include those contained in the following sources. Other published sampling procedures are also acceptable.
(a) 
Procedures Manual for Ground Water Monitoring at Solid Waste Disposal Sites, EPA SW-611, Office of Water and Waste Management, United States Environmental Protection Agency, December 1980, Washington, D.C.
(b) 
Techniques of Water Resources Investigations of the United States Geological Survey, Guidelines for Collection and Field Analysis of Ground Water Samples for Selected Unstable Constituents, Book I, Chapter D2, United States Geological Survey, Washington, D.C.
(c) 
Procedures for the Collection of Representative Water Quality Data from Monitoring Wells, Cooperative Groundwater Report 7, Illinois State Water Survey, 1981, Champaign, Illinois.
(d) 
Manual of Ground Water Sampling Procedures, NWWA/EPA Series, Robert S. Kerr Environmental Research Laboratory, 1981, Ada, Oklahoma.
(2) 
The laboratory shall utilize the analytical methodology specified in rules or approved by the Tribe. Where no analytical methodology is specified, the laboratory shall use an analytical methodology with a limit of detection and limit of quantitation below the preventive action limit. Where the limit of detection or limit of quantitation is above the preventive action limit for that substance, the laboratory shall use the best available analytical methodology to produce the lowest limit of detection and limit of quantitation.
(3) 
If the owner or operator of a facility, practice or activity believes that a sample result does not represent groundwater quality in the vicinity of the facility, practice or activity, the owner or operator shall resample the appropriate well or wells to obtain a representative sample at the earliest possible time. All sample results shall be submitted to the Tribe with an explanation of why the owner or operator believes that all or some of the results are invalid.
A. 
Indicator parameter groundwater standards.
(1) 
Establishing background water quality. Background water quality at a facility, practice or activity at which monitoring is required shall be established by sampling one or more monitoring points at locations and depths sufficient to yield groundwater samples that are representative of background water quality at or near the facility, practice or activity. Background water quality shall be determined for indicator parameters specified by the Tribe. Background water quality for indicator parameters shall be established by averaging a minimum of eight sample results from each well. The Tribe may exclude any sample result which is nonrepresentative of background water quality. In making the calculations required in this section, the Tribe may use as many representative sample points as are available.
(2) 
Establishing preventive action limits for indicator parameters. For each indicator parameter for which groundwater monitoring is required by the Tribe, the preventive action limit shall be established based upon a change of water quality with respect to background water quality according to the methodology specified in Subsection A(2)(a) to (c) and in Table 3.
(a) 
For field pH, the preventive action limit shall be one pH unit above or below the pH of the background water quality.
(b) 
For field temperature, the preventive action limit shall be three standard deviations or 10° F. (5.6° C.), whichever is greater, above or below the temperature of the background water quality.
(c) 
For all other indicator parameters, the preventive action limit shall be the background water quality for that parameter plus three standard deviations or the background water quality plus the increase of that parameter listed in Table 3, whichever is greater. Note: The standard deviation for a group of samples is equal to the square root of the value of the sum of the squares of the difference between each sample in the sample group and the mean for that sample group divided by the number of samples in the sample group where the sample group has 30 or more samples and by one less than the number of samples in the sample group where the sample group has fewer than 30 samples.
Table 3
Methodology for Establishing Preventive Action Limit for Indicator Parameters
Parameter
Minimum Increase
(mg/l)
Alkalinity
100
Biochemical oxygen demand (BOD)
25
Boron
2
Calcium
25
Chemical oxygen demand (COD)
25
Magnesium
25
Nitrogen series
Ammonia nitrogen
2
Organic nitrogen
2
Total nitrogen
5
Potassium
5
Sodium
10
Field specific conductance
200 micromhos/cm
Total hardness
100
Total organic carbon (TOC)
1
Total organic halogen (TOX)
0.25
B. 
Point of standards application.
(1) 
Facilities, practices or activities regulated by the Tribe shall be designed to minimize the level of substances in groundwater and to comply with the preventive action limits to the extent technically and economically feasible at the following locations:
(a) 
Any point of present groundwater use;
(b) 
Any point beyond the boundary of the property on which the facility, practice or activity is located; and
(c) 
Any point within the property boundaries beyond the three-dimensional design management zone if one is established by the Tribe at each facility, practice or activity under Subsection B(5).
(2) 
The point of standards application to determine if a preventive action limit has been attained or exceeded is any point at which groundwater is monitored.
(3) 
The point of standards application to determine whether an enforcement standard has been attained or exceeded shall be the following locations:
(a) 
Any point of present groundwater use.
(b) 
Any point beyond the boundary of the property on which the facility, practice or activity is located.
(c) 
Any point within the property boundaries beyond the three-dimensional design management zone if one is established by the Tribe at each facility, practice or activity under Subsection B(5).
(4) 
For spills and discharges regulated under Chapter 361, Article I, Hazardous Waste, the point of standards application shall be every point at which groundwater is monitored to determine if a preventive action limit or enforcement standard has been attained or exceeded.
(5) 
Design management zone.
(a) 
The design management zone for facilities, practices or activities subject to regulation by the Tribe shall be an area enclosed by vertical boundaries which extend from the land surface downward through all saturated geological formations. The design management zone shall extend horizontally beyond the waste boundary to the distance indicated in Table 4 for the specific type of facility, practice or activity. The waste boundary shall be the outermost limit at which waste from a facility, practice or activity has been stored, applied or disposed of or permitted or approved for storage, application or disposal.
(b) 
In issuing or reissuing a permit, the Tribe may consider an expansion or reduction of the design management zone at a regulated or proposed facility, practice or activity by a horizontal distance not to exceed 50% of the distance listed in Table 4.
(c) 
The Tribe shall consider the following factors in determining whether to expand or reduce the design management zone:
[1] 
Nature, thickness and permeability of unconsolidated materials, including topography;
[2] 
Nature and permeability of bedrock;
[3] 
Groundwater depth, flow direction and velocity;
[4] 
Waste volume, waste type and characteristics, including waste loading;
[5] 
Contaminant mobility;
[6] 
Distances to property boundary and surface waters;
[7] 
Engineering design of the facility, practice or activity;
[8] 
Life span of the facility, practice or activity;
[9] 
Present and anticipated uses of land and groundwater; and
[10] 
Potential abatement options if an enforcement standard is exceeded.
(d) 
The design management zone may not be expanded or reduced unless it has been demonstrated to the satisfaction of the Tribe that the preventive action limits and enforcement standards will be met at the adjusted design management zone. The design management zone may not be expanded unless it has been demonstrated to the satisfaction of the Tribe that the preventive action limits and enforcement standards cannot be met at the design management zone specified in Table 4.
Table 4
Type of Facility, Practice or Activity
Horizontal Distances for the Design Management Zone
(feet)
Solid waste disposal facilities constructed after adoption of Chapter 504, Article II, Solid Waste Management
150
Solid waste disposal facilities constructed before adoption of Chapter 504, Article II, Solid Waste Management
300
C. 
Responses when a preventive action limit is attained or exceeded.
(1) 
If the concentration of a substance, including indicator parameters in groundwater, attains or exceeds a preventive action limit at a point of standards application:
(a) 
The owner or operator of the facility, practice or activity shall notify the Tribe in writing when monitoring data is submitted that a preventive action limit has been attained or exceeded as soon as practical after the results are received. The notification shall provide a preliminary analysis of the cause and significance of the concentration.
(b) 
Upon receipt of the notice under Subsection C(1)(a), the Tribe shall evaluate the information and, if further information is required to make the assessment under Subsection C(1)(c), may direct the owner or operator to prepare and submit a report by a specified deadline. The report shall assess the cause and significance of the increased concentration based on a consideration of the factors identified in Subsection C(1)(c) and shall propose a response to meet the objectives of Subsection C(2).
(c) 
The Tribe shall assess the cause and significance of the concentration of the substance, determining the appropriate response measures to meet the objectives of Subsection C(2). If a preventive action limit is attained or exceeded at a monitoring point within the design management zone, the Tribe shall evaluate the location of the monitoring point, specific characteristics of the site, the nature of the substance involved and the likelihood of substance migration in assessing the need for response activities under Subsection C(2). In addition to all other relevant information, the Tribe shall consider the information submitted under this Subsection C(1) and the following factors where applicable:
[1] 
Background water quality.
[a] 
The Tribe shall compare background water quality data and monitoring data from wells downgradient of the facility, practice or activity to determine if downgradient water quality is adversely affected. If the background water quality at a facility, practice or activity is not known or is inadequately defined, the Tribe may require additional sampling of existing wells or installation and sampling of additional wells, or both.
[b] 
Except for substances which are carcinogenic, teratogenic or mutagenic in humans, before requiring a response at a site where the background concentration of a substance is determined to be equal to or greater than the preventive action limit, the Tribe shall determine that the proposed remedial action will protect or substantially improve groundwater quality notwithstanding the background concentrations of naturally occurring substances.
[2] 
Reliability of sampling data. As part of its review of the quality of the sampling data, the Tribe shall evaluate the sampling procedures, precision and accuracy of the analytical test, size of the data set, and the quality control and quality assurance procedures used. If there is insufficient information to evaluate the reliability of the sampling data, the Tribe may require additional samples or other changes in the monitoring program at the facility, practice or activity.
[3] 
Public health, welfare and environmental effects of the substance. The Tribe shall consider the public health, welfare and environmental effects of the substance, including but not limited to its mobility in the subsurface, environmental fate, the risks considered when the standard was adopted and whether it is carcinogenic, mutagenic, teratogenic or has interactive effects with other substances.
[4] 
Probability that a preventive action limit or an enforcement standard may be attained or exceeded outside the design management zone. In evaluating the probability that a preventive action limit or an enforcement standard may be attained or exceeded outside the design management zone, the Tribe shall consider, at a minimum, geologic conditions, groundwater flow rate and direction, contaminant mobility in the subsurface and environmental fate.
[5] 
Performance of the facility, practice or activity. The Tribe shall consider whether the facility, practice or activity is performing as designed. The Tribe shall consider the type, age and size of the facility, practice or activity; the type of design, if applicable; the operational history; and other factors related to performance of the facility, practice or activity as appropriate.
[6] 
Location of the monitoring point. The Tribe shall consider the location of the monitoring point in relation to the facility, practice or activity and the design management zone in assessing the appropriate response.
[7] 
Other known or suspected sources of the substance in the area. If other known or suspected sources are present in the vicinity of a facility, practice or activity of concern, the Tribe shall evaluate the probability of contributions from other sources of the substance. The Tribe shall consider, at a minimum, the number, size, type and age of nearby sources; the groundwater flow patterns; and the substances involved.
[8] 
Hydrogeologic conditions. The Tribe shall consider the geologic and groundwater conditions, including but not limited to the nature, thickness and permeability of the unconsolidated materials; the nature and permeability of bedrock; the depth to the water table; groundwater flow gradients, both vertical and horizontal; the position of the facility, practice or activity within the groundwater flow system; and the present and potential groundwater use in the vicinity of the facility, practice or activity at which an exceedance occurs. If there is insufficient hydrogeologic information, the Tribe may require additional information.
[9] 
Extent of groundwater contamination. The Tribe shall consider the current and anticipated future extent of groundwater contamination in three dimensions. If water supplies are affected or threatened the Tribe shall evaluate the existing effects and potential risks of the substance on the potable water supplies. If the extent of contamination is not known, the Tribe may require further documentation of the extent of contamination.
[10] 
Alternate responses. The Tribe shall evaluate alternate responses, including consideration of the technical and economic feasibility of alternate methods of disposal, the practicality of stopping the further release of the substance and the risks and benefits of continued operation of the facility, practice or activity.
(2) 
Based on the evaluation of the report required under Subsection C(1) and the factors in Subsection C(1)(c), the Tribe shall specify the responses to be implemented by the owner or operator of the facility, practice or activity designed to:
(a) 
Minimize the concentration of the substance in groundwater at the point of standards application where technically and economically feasible;
(b) 
Regain and maintain compliance with the preventive action limit. If the Tribe determines that compliance with the preventive action limit is either not technically or not economically feasible, the owner or operator shall achieve compliance with the lowest possible concentration which is technically and economically feasible; and
(c) 
Ensure that the enforcement standard is not attained or exceeded at the point of standards application.
(3) 
Except as otherwise provided in this subsection, the range of responses which the Tribe may take or may require if a preventive action limit for an indicator parameter identified in Table 3 has been attained or exceeded is one or more of the actions in Items 1 to 4 in Table 5. The range of responses is one or more of the actions in Items 1 to 6 of Table 5 in the event that the Tribe determines that:
(a) 
There is a threat to public health or welfare as a result of a preventive action limit for an indicator parameter being attained or exceeded; or
(b) 
The results demonstrate a significant design flaw or failure of the facility to contain substances, such that the facility can be expected to emit one or more of the substances on Table 1 or 2 in excess of a preventive action limit at a point of standards application.
(4) 
The range of responses which the Tribe may take or may require if a preventive action limit for a substance of health or welfare concern has been attained or exceeded is listed in Table 5. More than one response may be required by the Tribe.
Table 5
Range of Responses for Exceedence of a Preventive Action Limit for Indicator Parameters and Substances of Health or Welfare Concern
1.
No action pursuant to § 562-7C(5).
2.
Sample wells or require sampling of wells.
3.
Require a change in the monitoring program, including increased monitoring.
4.
Require an investigation of the extent of groundwater contamination.
5.
Require a revision of the operational procedures at the facility, practice or activity.
6.
Require a change in the design or construction of the facility, practice or activity.
7.
Require an alternate method of waste treatment or disposal.
8.
Require prohibition or closure and abandonment of a facility, practice or activity in accordance with Subsection F.
9.
Require remedial action to renovate or restore groundwater quality.
10.
Revise rules or criteria on facility design, location or management practices.
(5) 
The Tribe may determine that no remedial action to restore groundwater quality is necessary when:
(a) 
The concentration of a substance within a design management zone is detected above the preventive action limit, the enforcement standard has not been attained or exceeded within the design management zone, and the Tribe determines that there is no indication that the preventive action limit will be attained or exceeded at any point outside the design management zone; or
(b) 
The background concentration of a substance is greater than the preventive action limit, the anticipated or detected incremental increase in the concentration of a substance which results from a specific facility, practice or activity is not greater than the preventive action limit, and the anticipated or detected concentration is not greater than the enforcement standard either within or outside of the design management zone.
(6) 
The Tribe may not impose a prohibition on the facility, practice or activity which produces the substance unless the Tribe:
(a) 
Bases its decision upon reliable test data;
(b) 
Determines, to a reasonable certainty, by the greater weight of the credible evidence, that no other remedial action would prevent the violation of the enforcement standard at the point of standards application;
(c) 
Establishes the basis for the boundary and duration of the prohibition; and
(d) 
Ensures that any prohibition imposed shall be reasonably related in time and scope to maintaining compliance with the enforcement standard at the point of standards application.
(7) 
The Tribe may take any actions within the context of regulatory programs established in rules outside of this article, if those actions are necessary to protect public health and welfare or prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or nonconsumptive uses, whether or not an enforcement standard and preventive action limit for a substance have been adopted under this article. Nothing in this article authorizes an impact on groundwater quality which would cause surface water quality standards contained in Chapter 512, Surface Water, of this Code to be attained or exceeded.
D. 
Responses when an enforcement standard is attained or exceeded.
(1) 
If the concentration of a substance in groundwater attains or exceeds an enforcement standard at a point of standards application:
(a) 
The owner or operator of the facility, practice or activity shall notify the Tribe in writing when monitoring data is submitted that an enforcement standard has been attained or exceeded as soon as practical after the results are received. The notification shall provide a preliminary analysis of the cause and significance of the concentration.
(b) 
Upon receipt of the notice under Subsection D(1)(a), the Tribe shall evaluate the information and, if further information is required to make the assessment under Subsection D(1)(c), may direct the owner or operator to prepare and submit a report by a specified deadline. The report shall assess the cause and significance of the increased concentration based on a consideration of the factors identified in § 562-7C(1)(c) and shall propose a response to achieve compliance with the enforcement standard at the point of standards application and to comply with Subsection D(5).
(c) 
The Tribe shall assess the cause and significance of the concentration of the substance in determining the appropriate response measures to achieve compliance with the enforcement standard at the point of standards application and to comply with Subsection D(5). In addition to all other relevant information, the Tribe shall consider the information submitted under Subsection D(1) and the factors listed in § 562-7C(1)(c), where applicable.
(2) 
Based on the evaluation of the increased concentration as outlined in Subsection D(1), the Tribe shall require responses as necessary to achieve compliance with the enforcement standard at the point of standards application and to comply with Subsection D(5). The range of responses which the Tribe may take or require if an enforcement standard for a substance of public health or welfare concern has been attained or exceeded at a point of standards application is listed in Table 6. More than one response may be required by the Tribe. In addition, the Tribe may require one or more responses from Table 5, except Number 1.
Table 6
Range of Responses for Exceedence of Enforcement Standards for Substances of Health or Welfare Concern
1.
Require a revision of the operational procedures at a facility, practice or activity.
2.
Require a change in the design or construction of the facility, practice or activity.
3.
Require an alternate method of waste treatment or disposal.
4.
Require prohibition or closure and abandonment of a facility, practice or activity.
5.
Require remedial action to renovate or restore groundwater quality.
6.
Revise rules or criteria on facility design, location or management practices.
(3) 
If an activity or practice is not subject to regulation under Chapter 361, Article I, Hazardous Waste, or Chapter 504, Article II, Solid Waste Management, and if the concentration of a substance in groundwater attains or exceeds an enforcement standard at a point of standards application, the Tribe shall take the following responses unless it can be shown to the Tribe that, to a reasonable certainty, by the greater weight of the credible evidence, an alternative response will achieve compliance with the enforcement standard at the point of standards application:
(a) 
Prohibit the activity or practice which uses or produces the substance; and
(b) 
Require remedial actions with respect to the specific site in accordance with this article.
(4) 
If nitrates or any substance of welfare concern only attains or exceeds an enforcement standard, the Tribe is not required to impose a prohibition or close a facility if it determines that:
(a) 
The enforcement standard was attained or exceeded, in whole or in part, because of high background concentrations of the substance; and
(b) 
The additional concentration does not represent a public welfare concern.
(5) 
When compliance with the enforcement standard is achieved at the point of standards application, § 562-7C applies.
(6) 
The Tribe may take any actions within the context of regulatory programs established in rules outside of this article if those actions are necessary to protect public health and welfare or prevent a significant damaging effect on groundwater or surface water quality for present or future consumptive or nonconsumptive uses, whether or not an enforcement standard and preventive action limit for a substance have been adopted under this article. Nothing in this article authorizes an impact on groundwater quality which would cause surface water quality standards contained in this article to be attained or exceeded.
E. 
Exemptions.
(1) 
Exemptions required.
(a) 
The Tribe may not approve a proposed facility, practice or activity at a location where a preventive action limit or enforcement standard has been attained or exceeded unless an exemption has been granted under this section.
(b) 
Remedial action is required under § 562-7C or D when a preventive action limit or an enforcement standard has been attained or exceeded unless an exemption has been granted under this section.
(2) 
Criteria for granting exemptions where the background concentration is below the preventive action limit. The Tribe may grant an exemption under this section when a preventive action limit is attained or exceeded if it determines that:
(a) 
The measured or anticipated increase in the concentration of the substance will be minimized to the extent technically and economically feasible;
(b) 
Compliance with the preventive action limit is either not technically or not economically feasible;
(c) 
The enforcement standard for that substance will not be attained or exceeded at the point of standards application; and
(d) 
Any existing or projected increase in the concentration of the substance above the background concentration does not present a threat to public health or welfare.
(3) 
Criteria for granting exemptions where the background concentration is above a preventive action limit.
(a) 
The Tribe may grant an exemption under this section to allow a facility, practice or activity which is regulated by the Tribe to be constructed or operated in an area where the background concentration of nitrate or a substance of public welfare concern attains or exceeds the preventive action limit if the facility, practice or activity is designed to achieve the lowest possible concentration for that substance which is technically and economically feasible and the present and anticipated increase in the concentration of the substance does not present a threat to public health or welfare.
(b) 
The Tribe may grant an exemption under this section to allow a facility, practice or activity which is regulated by the Tribe to be constructed or operated in an area where the background concentration of a substance of public health concern, other than nitrate, attains or exceeds a preventive action limit for that substance:
[1] 
If the facility, practice or activity has not caused and will not cause the further release of that substance into the environment; or
[2] 
If the background concentration of the substance does not exceed the enforcement standard for that substance, the facility, practice or activity has not caused and will not cause the concentration of the substance to exceed the enforcement standard for that substance and the facility, practice or activity is designed to achieve the lowest possible concentration of that substance which is technically and economically feasible.
(4) 
Criteria for granting exemptions where the background concentration is above an enforcement standard.
(a) 
The Tribe may grant an exemption under this section to allow a facility, practice or activity which is regulated by the Tribe to be constructed or operated in an area where the background concentration of nitrate or a substance of public welfare concern attains or exceeds an enforcement standard if the facility, practice or activity is designed to achieve the lowest possible concentration for that substance which is technically and economically feasible and the present and anticipated increase in the concentration of the substance does not present a threat to public health or welfare.
(b) 
Conditions.
[1] 
The Tribe may grant an exemption under this section to allow a facility, practice or activity which is regulated by the Tribe to be constructed or operated in an area where the background concentration of a substance of public health concern, other than nitrate, attains or exceeds the enforcement standard for that substance if:
[a] 
The facility has not caused and will not cause the further release of that substance into the environment; or
[b] 
The facility is designed to achieve the lowest possible concentration of that substance which is technically and economically feasible and:
[i] 
The existing or anticipated increase in the concentration of the substance has not caused or will not cause an increased threat to public health or welfare; and
[ii] 
The existing or anticipated incremental increase in the concentration of the substance, by itself, has not exceeded or will not exceed the preventive action limit.
[2] 
The Tribe shall take action under § 562-7D if it determines that the increase in the concentration of the substance causes an increased threat to public health or welfare or it determines that the incremental increase in the concentration of the substance, by itself, exceeds the preventive action limit.
(5) 
Exemption procedures. If the Tribe grants an exemption for a substance it shall specify:
(a) 
The substance to which the exemption applies;
(b) 
The terms and conditions of the exemption, which may include an alternative concentration limit, under which the Tribe may seek remedial action relating to the substance; and
(c) 
Any other conditions relating to the exemption.
F. 
Penalties.
(1) 
Any person, facility, practice or activity that violates this article or any rule promulgated under this article shall be subject to an initial forfeiture of $2,500 for each day of violation. For a second or subsequent violation, the person, facility, practice or activity shall be fined not more than $5,000. The time elapsed prior to the expiration of a compliance order shall not constitute a violation. Each day of violation constitutes a separate offense.
(2) 
For persons, facilities, practices or activities off the Reservation which cause a violation of the regulations or standards of this article, the Tribe shall seek to ameliorate the violation through negotiation or federal court action.
A. 
Groundwater use limitations.
(1) 
Quantity limitations.
(a) 
Facilities, practices and activities which utilize groundwater shall be limited to 100,000 gallons or less of groundwater per day.
(b) 
Extraction of groundwater by a facility, practice or activity shall not adversely affect the quantity of groundwater available to any other facility, practice or activity, including private wells. An impact on groundwater quantity by a facility, practice or activity on any other facility, practice or activity which results in the latter not being able to obtain sufficient groundwater shall constitute an adverse effect.
(c) 
Persons who propose to utilize groundwater shall submit a feasibility report to the Tribe which documents the quantity of groundwater intended to be extracted per day. No facility, practice or activity which utilizes groundwater shall be undertaken until approval of a feasibility report is obtained from the Tribe.
B. 
Monitoring program. A groundwater monitoring program shall be undertaken in cooperation with the United States Geological Survey to establish background substance levels and to provide time-series groundwater data. An annual work plan shall be developed to establish the monitoring efforts to be undertaken.
C. 
Comprehensive water resources management and protection plan. A comprehensive water resources plan shall be developed which addresses management and protection concerns of the groundwater resources of the Menominee Reservation. The plan shall include an inventory of groundwater physical resources, including United States Geological Survey monitoring data, maps showing type of and depth to bedrock, depth to water table, surficial deposits, and groundwater flow patterns; an inventory of existing and potential groundwater contamination sources; a combination of above information to identify sensitive areas where groundwater management should be focused; evaluation of alternative groundwater management strategies; and recommendations for further groundwater management efforts.