3.25.070 Powers and Duties of the Department

(a) The department may exercise the following powers in addition to any other powers granted by law:

(1) Take, or require potentially responsible parties to take immediate action where the department has determined such action is required to protect human health or the environment;

(2) Investigate, provide for investigating, or require potentially responsible parties to investigate any releases or threatened releases of hazardous substances, including but not limited to inspecting, sampling, or testing to determine the nature 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 issued pursuant to Chapters 115 and 114.3 of the Bad River Tribal Court Code, require the attendance or testimony of witnesses and the production of documents or other information that the department deems necessary to aid in the investigation of any releases or threatened releases of hazardous substances;

(3) Conduct, provide for conducting, or require potentially responsible parties to conduct remedial actions (including investigations under (1) of this subsection) 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;

(4) In addition to those powers described in Section 3.25.070(a)(1), (2), and (3), 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 Section 3.25.060(m) of this Chapter;

(6) Issue administrative orders or enter into consent decrees or agreed orders, or issue written opinions under (8) of this subsection that may be conditioned upon, environmental covenants where necessary to protect human health and the environment from a release or threatened release of a hazardous substance from a facility. Prior to establishing an environmental covenant under this subsection, the department shall consult with tribal entities having experience in the subject matter of the order;

(7) Enforce the application of permanent and effective institutional controls that are necessary for a remedial action to be protective of human health and the environment and the notification requirements established in Section 3.25.080 of this Chapter, and impose penalties for violations of that section consistent with Section 3.25.090(e) of this Chapter;

(8) Provide informal advice and assistance to persons regarding the administrative and technical requirements of this chapter. This may include site-specific advice to persons who are conducting or otherwise interested in independent remedial actions. Any such advice or assistance shall be advisory only, and shall not be binding on the department. As a part of providing this advice and assistance for independent remedial actions, the department may prepare written opinions regarding whether the independent remedial actions or proposals for those actions meet the substantive requirements of this chapter or whether the department believes further remedial action is necessary at the facility. The department may collect, from persons requesting advice and assistance, the costs incurred by the department in providing such advice and assistance. The Tribe, the department, and officers and employees of the Tribe are immune from all liability, and no cause of action of any nature may arise from any act or omission in providing, or failing to provide, informal advice and assistance.

(b) The department shall maintain the hazardous sites list.

(1) The department shall give a hazard ranking to sites placed on the list. The purpose of hazard ranking is to estimate, based on the information compiled during the site assessment, the relative potential risk posed by the site to human health and the environment. This assessment considers air, groundwater, and surface water migration pathways, human and nonhuman exposure targets, the presence of threatened or endangered species or habitat, the presence of subsistence crops or resources, tribal uses of the site or surrounding area, historical cultural practices of the site or surrounding area, properties of the substances present, and the interaction of these variables.

(2) The department may, at its discretion, re-rank a site if, before the initiation of action at the site, the department receives additional information within the scope of the evaluation criteria which indicates that a significant change in rank may result.

(3) Site status. The hazardous sites list shall reflect the current status of remedial action at each site. The department may change a site's status to reflect current conditions. The status for each site shall be identified as one of the following:

(A) Sites awaiting further remedial action;

(B) Sites with remedial action in progress;

(D) Other categories established by the department.

(4) The department may remove a site from the list only after it has determined that

(A) all remedial actions except confirmational monitoring have been completed and compliance with the cleanup standards has been achieved at the site;

(B) the listing was erroneous.

(5) A site owner, operator, or potentially responsible person may request that a site be removed from the list by submitting a petition to the department. The petition shall include thorough documentation of all investigations performed, all cleanup actions taken, and adequate compliance monitoring to demonstrate to the department's satisfaction that one of the conditions in (4) of this subsection has been met. The department may require payment of costs incurred, including an advance deposit, for review and verification of the work performed. The department shall review such petitions; however, the timing of the review shall be at its discretion and as resources may allow.

(6) Record of sites. The department shall maintain a record of sites that have been removed from the list under subsection (4) of this section.

(7) Relisting of sites. The department may relist a site that has previously been removed if it determines that the site requires further remedial action.