40.18.190 Institutional Controls

An institutional control area or site may be created or modified by a majority vote of the Tribal Council and/or a responsible government agency. \

(a) The Tribal EPA Director, an owner or leasee of a site or property or a government agency responsible for a site or property may propose long-term restrictions on the use of a site or property and shall petition to the Tribal Council and to the appropriate governmental entity or entities, as appropriate, for the creation of such an institutional control area to establish long-term restrictions on the use of the site or property. Such petitioner for creation or modification of an institutional control area shall:

(1) Provide data, information, reports and any other information required in a Remediation Assessment Agreement and/or Remediation Agreement under this section;

(2) Document written notice of the petition to all property owners of record of land contiguous to the site; and

(3) Publish notice of the petition and a public meeting in a newspaper of general circulation in the community in which the site is located. The notice shall identify the property, generally describe the petition and proposed use restrictions, direct that comments may be submitted to the Tribal Council and any responsible governmental entity or entities to

whom the petition has been submitted, and provide the date, time and place of a public meeting. The public meeting shall be held no sooner than thirty (30) days after the first publication of the notice.

(b) The Tribal Council shall approve or deny such petition for an institutional control area within one hundred eighty (180) days after the petition is received in accordance with applicable rules, regulations and procedures. The petitioner, property owner or leasee and a responsible governmental entity may agree to extend the time period in which the Tribal Council is to vote upon the petition.

(c) The Tribal Council may, on a vote taken within one hundred eighty (180) days after the petition is received, condition its vote approving the petition upon the determination by the Tribal EPA Director that a remedy can be selected that meets the requirements of this section and is consistent with petition.

(d) The Tribal EPA or the Compliance Officer may request an institutional control be placed on a property or site but shall not have the authority to require a Tribal or governmental entity to adopt any restriction applicable to a site as part of a remediation or response action or a Remediation Agreement. Before a voluntary remediation applicant and the TM-TRP may enter into a Remediation Agreement that includes long-term restrictions on the use of a site or property, the owner or leasee of the site or property must obtain an institutional control designation for the site as provided for in this section.

(e) The restrictions in an institutional control area are enforceable by the Tribal Council or the Compliance Officer by injunction, mandamus or abatement, in addition to any other remedies provided by Tribal law or Act.

(f) Institutional controls or use restrictions shall run with the land and be binding upon successors in land ownership and/or leases.

(g) A violation of any use restriction or institutional control shall be deemed a violation of this Act, and the Compliance Officer or Tribal Council may bring any action for such violation against the owner or leasee of the property or site for the violation at the time the violation occurs or against the person who violates the use restriction or institutional control.

(h) Nothing in this section shall contravene or limit the authority of any Tribal, county, city or government agency to regulate and control the property under their jurisdiction.