[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
The surface waters, groundwater, soils, vegetation and atmosphere
inside the reservation are susceptible to damage from the handling,
storage, use, processing and disposal of hazardous material. The expense
incurred by the Tribe as a result of Grand Traverse Band Fire/Rescue
Department having to respond to protect life, property and the environment
by preventing or mitigating a release of hazardous materials should
be recovered from the person responsible for the release or threatened
release.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
As used in this ordinance, the following terms shall have the
following meanings, unless the context clearly indicates that a different
meaning is intended:
(a)
"CFR" shall mean the Code of Federal Regulations.
(b)
"Designee" shall mean the Northwestern Regional Hazardous Materials
Response Team or such other public or private agency authorized in
writing by the Tribe to respond to hazardous materials incidents within
the Grand Traverse Reservation or on trust lands.
(c)
"Emergency action" shall mean all of the activities conducted in
order to prevent imminent injury or mitigate injury to human health
or to the environment inside the Grand Traverse Band from a release
or threatened release of any hazardous material into or upon the environment.
(d)
"Hazardous material" shall mean any of the following:
(1)
Any material listed in 49 CFR § 173.2, as may be amended,
as a hazardous material;
(2)
Any material listed in 40 CFR § 401.15, as may be
amended, as a toxic pollutant;
(3)
Any material designated as a hazardous material and regulated
as such by the law of the State of Michigan; and
(4)
Petroleum and petroleum-based products which retain any of the
hazardous characteristics of raw petroleum.
(e)
"Person" shall include any individual and any corporation, association,
partnership, firm, trustee, or legal representative.
(f)
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injection, escaping, leaching, dumping or disposing
into or upon the environment, which causes dangers or harm to the
public health or to the environment; including, but not limited to,
the release of any material classified as hazardous material by any
federal legislation or regulation, by any state legislation or regulation,
or by any township ordinance.
(g)
"Response" shall mean action by the Tribe or its designee to contain,
clean-up or mitigate injury to the environment or to people caused
by a release or threated release of hazardous materials in a manner
other than as an emergency action.
(h)
"Threatened release" shall mean any imminent or impending event with
the potential to cause a release, and which causes the Tribe to undertake
an emergency action to prevent a release.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
(a)
Any person who handles or stores hazardous materials that, if released,
would cause damage to the surface waters, groundwater, soils or atmosphere
shall notify the Tribe prior to transporting hazardous materials onto
the reservation for handling or storage and/or immediately upon release.
(b)
The requirements of this ordinance shall not be construed to forbid
or forgive any person from using all diligence necessary to control
a hazardous material release prior or subsequent to the notification
of the Tribe, especially if such efforts may result in the containment
of the release or the abatement of extreme hazard to the employees
or the general public. Delays in reporting releases due to in-house
notification of off-site owners or supervisors shall result in penalties.
Nothing in this ordinance shall be construed to exempt or release
any person from any other notification or reporting required by any
Tribal, state or federal agency or with all applicable regulations
and laws.
(c)
The Tribal Council, Fire Chief, or the Tribal Manager are authorized
to direct a response or an emergency action and the clean-up and abatement
of any release, or threatened release, within the Tribe.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
(a)
Any person who causes a release or a threatened release, or who contributes
to the same, shall be liable to the Tribe for recoverable costs incurred
by a response or an emergency action.
(b)
The following described persons shall be jointly and severally liable
to the Tribe for the payment of all costs incurred by the Tribe as
a result of such cleanup or abatement activity:
(1)
Any person whose negligent or willful act or omission proximately
caused such release, discharge or deposit; and
(2)
Any person who owned or had custody or control of the hazardous
material or the material at the time of such release, discharge, or
deposit, without regard to fault or proximate cause.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
(a)
The Tribe or its designee shall keep an itemized record of recoverable
costs resulting from a release or threatened release, including any
response or an emergency action.
(b)
The Tribe or its designee shall submit a written itemized claim to
the responsible person for the total costs incurred related to the
release or threatened release and any emergency action with written
notice that unless the amounts are paid in full within 30 days after
the date of the mailing of the claim and notice, a civil action will
be commenced seeking recovery for the stated amount plus any amounts
occasioned by such suit.
(c)
For the purposes of this ordinance, costs of the Tribe or its designee
shall mean all direct and indirect costs and shall include, but not
be limited to, the following:
(1)
Actual labor cost of personnel, including workers' compensation
benefits, including continuing costs to an employer, and fringe benefits;
(2)
Administrative overhead;
(3)
Costs of equipment operation;
(4)
Costs of materials;
(5)
Laboratory costs of analyzing samples taken during the emergency
action;
(6)
Medical expenses incurred as a result of response activities;
(7)
Costs of any contract labor;
(8)
Costs to supervise or verify the adequacy of the cleanup or
abatement by others; and
(9)
Legal expenses that may be incurred as a result of the response
or emergency action, including actions for recoverable expenses pursuant
to this ordinance.
(d)
Costs recovered related to the response or emergency action incurred
by the Tribe's designee shall be transferred to the designee as soon
as possible.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
The Tribe or its designee may bring a civil action for payment
of the recoverable costs against any and all persons liable under
this ordinance. All costs of such suit, including actual costs and
attorney fees, shall also be a recoverable cost within the same civil
action.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
(a)
Nothing in this ordinance shall be construed to conflict with Tribal,
state or federal laws requiring persons causing or responsible for
release or threatened release from engaging in remediation activities
or paying the cost thereof, or both.
(b)
Nothing in this ordinance shall prevent the criminal or civil liability
of any person under any applicable tribal, federal or state law or
regulation.
(c)
Failure of a person to comply with an applicable tribal, federal
or state law or regulation governing the transportation, use, storage,
handling or disposal of hazardous material shall establish prima facie
liability to the Tribe or its designee for recoverable costs incurred
by a response or emergency action.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
The remedies provided by this ordinance shall be in addition
to any other remedies available in equity or at law and such penalties
as provided by law or ordinance.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
Nothing in this ordinance shall be interpreted as waiving the
sovereign immunity of the Tribe or any designee entitled to the same.
[History: Tribal Act #01-19.1007, enacted by Tribal Council
on May 16, 2001. Amended by Tribal Act #15-33.2688, January 20, 2016;
and enacted by Tribal Council on February 19, 2016.]
[History: Enacted by Tribal Council on February 19, 2016.]
(a)
Adoption and Application of Standards.
(1)
The Tribe hereby adopts and shall apply the clean-up standards
set forth in the Michigan Department of Environmental Quality Clean-up
Criteria Requirements for Response Activity, as amended, which is
incorporated herein by reference.
(2)
If a necessary clean-up standard is not identified, or if a
release or threatened release involves multiple materials with multiple
health effects, the Tribe may determine the appropriate clean-up standard
by reference to comparable tribal, state or federal clean-up standards,
or the Tribe may consult with tribal, state and federal agencies,
or institutes of higher learning, or other entities or persons with
expertise in the clean-up of hazardous or toxic materials and/or human
or environmental toxicology to determine the appropriate clean-up
level that protects human health (consistent with Tribal practices
and consumptive uses) and the environment.
(3)
The Tribe may develop and adopt specific clean-up standards
for application under this ordinance. In developing these standards,
the Tribe may consult with tribal, state and federal agencies, or
institutes of higher learning, or other entities or persons with expertise
in the clean-up of hazardous or toxic materials and/or human or environmental
toxicology to determine the appropriate clean-up level that protects
human health (consistent with Tribal practices and consumptive uses)
and the environment. Upon enactment by Tribal Council of such clean-up
standards, which shall be in the form of amendment(s) to this ordinance,
such standards shall, on the effective date determined by the Council,
become enforceable hereunder and shall supersede previously applicable
standards.
