3.25.100 Consent Decrees

The Bad River Tribal Court shall have jurisdiction over the entry and enforcement of Consent Decrees pursuant to Bad River Tribal Court Code Section 1.06.010(a)(5).

(a) Procedures for consent decrees initiated by the department. When the department believes that a consent decree will be a more expeditious method to achieve remedial action at a facility, it may initiate the procedures set forth in this subsection by sending a letter to the potentially responsible person. The letter shall be sent via certified mail, return receipt requested, or by personal service.

(1) The letter shall:

(A) Inform potentially responsible person(s) that the department wants to begin negotiations which may lead to a consent decree providing for remedial action;

(B) Propose a draft consent decree and scope of work;

(C) Define the negotiation process and schedule which shall not exceed ninety days;

(D) Reference the department's finding under Section 3.25.070(a)(8) of this Chapter regarding whether the 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;

(E) Request a written statement of the potentially responsible person's willingness to proceed with the negotiation process defined in the letter; and

(F) Request the names of other persons whom the person has reason to believe may be potentially responsible persons at the facility.

(2) The letter may request the potentially responsible person to respond, in writing, to the proposed draft consent decree and scope of work before beginning the negotiation phase.

(3) Negotiations. The department, with the assistance of the office of the Tribal Attorney, shall negotiate with potentially responsible persons who have indicated to the department a willingness to proceed with the negotiations. The negotiation time frame shall begin from the date the potentially responsible person receives the letter under (1) of this subsection unless modified by the department. Negotiations may address one or more phases of remedial action.

(4) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under Section 3.25.090 of this Chapter, but the duration of the stay shall not exceed ninety days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(A) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(B) The proposal is inappropriate based on new information or changed circumstances. The department may commence with enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(5) Deadline extensions. The department may, at its discretion, extend the deadline for negotiations established in (3) of this subsection, provided the extension does not exceed thirty days.

(b) Procedures for consent decrees initiated by potentially responsible persons. To request a consent decree a person shall submit a letter to the department via certified mail, return receipt requested, or by personal delivery.

(1) Request. The letter shall describe, based on available information:

(A) The proposed remedial action, including the schedule for the work;

(B) Information which demonstrates that the settlement will lead to a more expeditious cleanup, be consistent with cleanup standards if the remedial action is a cleanup action, and be consistent with any previous orders;

(C) The facility, including location and boundaries;

(D) The environmental problems to be addressed including a description of the releases at the facility and the potential impact of those releases to human health and the environment;

(E) A summary of the relevant historical use or conditions at the facility;

(F) The date on which the potentially responsible person will be ready to submit a detailed proposal;

(G) Any special scheduling considerations for implementing the remedial actions; and

(H) Names of other persons who the person has reason to believe may be potentially responsible persons at the facility.

(2) The letter may include the contents of detailed proposal under (6) of this subsection.

(3) Recognizing that the steps of the cleanup process may be combined and may vary by site, the information in the request shall be at the level of detail appropriate to the steps in the process for which the consent decree is requested. For example, a request for a consent decree for a remedial investigation/feasibility study should generally include the level of information needed for a site hazard assessment, if not already done by the department, so that the department can evaluate the proposed scope of work and relative priority of the site.

(4) The department may waive part of the letter requirements of (1) of this subsection if the requirements have already been met.

(5) Response. The department shall respond to the request within sixty days, unless the department needs additional time. The department may:

(A) Request additional information;

(B) Accept the request and require the person to submit a detailed written proposal by a specified date; or

(C) Provide written reasons for denying the request.

(6) Contents of detailed proposal. The proposal shall contain:

(A) A proposed technical scope of work describing the remedial action to be conducted;

(B) The data, studies, or any other information upon which the settlement proposal is based;

(C) A statement describing the potentially responsible person's ability to conduct or finance the remedial action as described in the proposed scope of work;

(D) A schedule for proposed negotiations and implementation of the proposed remedial actions; and

(E) Any additional information requested by the department.

(7) The department shall determine whether the proposal provides a sufficient basis for negotiations, and shall deliver to the potentially responsible person within sixty days following receipt of their proposal a written notice indicating whether or not the proposal is sufficient to proceed with negotiations.

(8) Time limits for negotiations. The department shall set the time period and starting date for negotiations. The department, with the assistance of the Tribal Attorney, shall then negotiate with those potentially responsible persons who have received a notice under (7) of this subsection that their proposal was sufficient to proceed with negotiations. Negotiations may address one or more phases of remedial action.

(9) Enforcement stay. Unless an emergency exists, the department will stay any enforcement action under Section 3.25.090 of this Chapter, but the duration of such stay shall not exceed one hundred twenty days from the date negotiations begin. The department can withdraw from negotiations if it determines that:

(A) Reasonable progress is not being made toward a consent decree acceptable to the department; or

(B) The proposal is inappropriate based on new information or changed circumstances.

The department may begin an enforcement action after notifying the potentially liable person, in writing, of its intent to withdraw from negotiations.

(c) Filing a decree. The department shall determine whether the proposed settlement negotiated under subsection (a) or (b) of this section, is more expeditious and consistent with cleanup standards established and in compliance with any order issued by the department relevant to the remedial action. The department shall forward the proposed consent decree to the office of the Tribal Attorney. If agreed to by the Tribal Attorney, the consent decree will be filed by that office with the tribal court.