The Menominee Tribal Legislature finds that the manufacture of clandestine drugs, including but not limited to methamphetamine, on the Menominee Reservation is contrary to a safe and healthy way of life. The Legislature further finds that such drug manufacture can be extremely dangerous and endanger the health and welfare of residents of the Menominee Reservation.
A. 
Professional reports, based on assessments, testing, and investigations, show that chemicals used in the production of illicit drugs can condense, penetrate, and contaminate surfaces, furnishings, and equipment of structures and adversely impact the environment.
B. 
These conditions present health and safety risks to occupants and visitors of structures through fire, explosion, and skin and respiratory exposure to chemicals.
C. 
This article establishes responsibilities and guidelines for involved parties to assure the following:
(1) 
People are not unnecessarily exposed to the dangers of these contaminated structures; and
(2) 
Proper steps are taken to remove contaminants and assure appropriate tests are done to demonstrate that affected structures are sufficiently cleaned for human contact.
D. 
This article assists and guides appropriate authorities, property owners, and occupants to prevent injury and illness to members of the public, particularly children.
E. 
This article is intended to help assure reduction of people's exposure to chemicals associated with the site of a former clandestine drug lab operation at structures such as a dwelling, building, motor vehicle, trailer, or appliance.
A. 
This article shall apply to all lands within the external boundaries of the Menominee Indian Reservation and all lands later acquired and placed into trust for the Menominee Indian Tribe by the federal government.
B. 
Where a federal law or statute applies to the subject of this article and is in conflict with this article, that federal law shall apply to the extent of the conflicting part of this article and to the extent that the statute applies to the actions of tribal government.
A. 
The provisions of this article shall be interpreted and applied as the minimum requirements necessary to protect public health, safety, and welfare.
B. 
Where the conditions imposed by any provision of this article are either more restrictive or less restrictive than comparable provisions imposed by any other tribally applicable law, ordinance, statute, resolution, or regulation of any kind, the regulations which are more restrictive or which impose higher standards or requirements shall prevail.
Liability on the part of, or a cause of action against, the Menominee Indian Tribe or any employee thereof for any damages that may result from reliance on this article shall be eliminated to the extent allowed by the Menominee Tribal Constitution.
For the purpose of this article, the following terms or words shall be interpreted as follows:
CHEMICAL INVESTIGATION SITE
A clandestine drug lab site that is under notice and order for cleanup and/or remediation as a public health nuisance, as authorized by the Menominee Indian Tribe and/or this article.
CHILD
Any person less than 18 years of age.
CLANDESTINE DRUG LAB GENERAL CLEANUP GUIDANCE (CDLGCG)
Clandestine Drub Lab General Cleanup Guidance standard operating procedure guide adopted by the Menominee Indian Tribe and attached hereto.[1]
CLANDESTINE DRUG LAB SITE
Any parts of a structure, such as a dwelling, building, motor vehicle, trailer, or appliance, occupied or affected by conditions and/or chemicals typically associated with a clandestine drug lab operation.
CLEANUP
Proper removal and/or containment of substances hazardous to humans and/or the environment at a chemical investigation site. Cleanup is a part of remediation.
CONTROLLED SUBSTANCE
See § 306-3 of this Part 1.
OWNER
Any person, firm, or corporation who or which owns, in whole or in part, the land and/or structures, such as building, motor vehicle, trailer, boat or other appliance, at a clandestine drug lab site. In the case of federal trust real estate property, "owner" shall mean the beneficial owner of the property and not the legal title owner, unless otherwise stated.
PUBLIC HEALTH AUTHORITY
The Menominee tribal department or departments designated by the Menominee Indian Tribe that are committed to protecting and improving the health of the residents of the Menominee Indian Reservation. Until such time that the Menominee Indian Tribe designates such a committee, the Public Health Authority shall be comprised of the Director of Environmental Services, the Director of Community Health Nursing Services and the Director of the Community Development Department.
PUBLIC HEALTH NUISANCE
Any activity or failure to act that adversely affects the public health.
REMEDIATION
Methods such as assessment, evaluation, testing, venting, detergent scrubbing, enclosure, encapsulation, demolition, and/or removal of contaminated materials from a chemical investigation site.
STRUCTURE
A dwelling, building, motor vehicle, trailer, boat or other appliance.
[1]
Editor's Note: A copy of the guide is on file at the office of the Administrative Manager.
A. 
Declaration of site as a chemical investigation site public health nuisance. Clandestine drug lab sites as defined above are declared by this article to be chemical investigation site public health nuisances.
B. 
Medical protocol for assessing health status of exposed persons. A medical protocol for assessing the health status and determining medical care needs of persons, particularly children, that are found or known to be frequent visitors at a clandestine drug lab site shall be established by the Public Health Authority of the Menominee Indian Tribe as a standing order that may be updated as necessary.
A. 
Law enforcement authorities who identify a clandestine drug lab site or clandestine drug lab operation shall promptly notify the Public Health Authority, the Tribal Environmental Services Department and both tribal and county departments responsible for public health and child protection.
B. 
The obligation to promptly notify may be delayed to accomplish appropriate law enforcement objectives, but only to the extent that public health and child protection responsibilities are not unnecessarily compromised.
C. 
When law enforcement completes its work and is prepared to leave such sites, it shall leave a warning sign posted on the entrance of the affected part of the structure. The warning signs shall be those that have been prepared in advance for such situations through the collaboration of law enforcement and the Public Health Authority. The warning sign shall be of an adequate size and contain information sufficient to alert visitors or returning occupants to the site that the area is a chemical investigation site, may be dangerous to enter, and must not be entered except by authorization of the Public Health Authority and/or law enforcement agency identified on the sign.
D. 
The notices referenced in Subsection C above shall include sufficient information to inform the recipients of the following:
(1) 
Property location by street address and other identifiable location;
(2) 
Property owner's and occupant's identities, especially the identities of any children and women of childbearing age found or known to be associated with the site;
(3) 
Chemicals found and indications of chemical residues;
(4) 
Presumed duration of the lab;
(5) 
Equipment in a dwelling or structure that is typically associated with the manufacture of a controlled substance; and
(6) 
Conditions typically associated with a clandestine drug lab site or operation, including weapons, illicit drugs, filth, fire, or electrical shock and other harmful conditions as determined by Menominee tribal law.
A. 
After the Public Health Authority receives adequate information from law enforcement that it has identified a clandestine drug lab site and posted the appropriate "chemical investigation site public health nuisance" sign, the Public Health Authority shall act to contact the lawful occupants and owners of the site to also inform them of their responsibilities relative to the chemical investigation site public health nuisance.
B. 
The Public Health Authority shall notify and order the property owner and occupant to have the public health nuisance removed or abated as provided by Menominee tribal law, Menominee Indian Tribe of Wisconsin Clandestine Drug Lab General Cleanup Guidance incorporated by reference as attached hereto.[1] and this article. The Public Health Authority shall include the following as part of the notice and order:
(1) 
A replica of the chemical investigation site public health nuisance declaration that is posted at the site's entrance(s).
(2) 
Information about the potentially hazardous condition of the dwelling.
(3) 
A summary of the property owner's and occupant's responsibilities under this article.
(4) 
Information that can help them locate appropriate services necessary to remove and resolve the chemical investigation site public health nuisance status as provided in this article and Menominee tribal law.
[1]
Editor's Note: A copy of the guide is on file at the office of the Administrative Manager.
C. 
The Public Health Authority shall also provide information about the chemical investigation site public health nuisance declaration and potential hazard(s) to the following concerned parties:
(1) 
Occupants of the affected structure.
(2) 
Neighbors in proximity that can be reasonably affected by the conditions found.
(3) 
The Tribal Chairperson.
(4) 
The County Board Chairperson.
(5) 
Local law enforcement.
(6) 
Menominee Department of Social Services.
(7) 
Menominee County Health and Human Services.
(8) 
Menominee Tribal Environmental Services Department.
(9) 
Menominee Community Development Department.
(10) 
Community Health Nursing Services.
(11) 
Tribal Housing Department.
A. 
If, after 10 days' notice and order, the Public Health Authority is unable to obtain any reasonable assurance or plan from the property owner or occupant that the dwelling or structure is being properly vacated, cleaned, remediated, and tested, the Public Health Authority is authorized to provide a copy of the chemical investigation site public health nuisance notice and order to the County Recorder and to the lien and mortgage holders of the affected structure and/or properties. The County Recorder is authorized to file that information with the property record to help assure that persons with interest in the property have access to information about the property's chemical investigation site public health nuisance status.
B. 
Similarly, when the affected property is a motor vehicle, boat, or trailer, the Public Health Authority shall notify the appropriate state and local agency that maintains motor vehicle, boat, or trailer records and the lien and mortgage holders of the affected properties.
A. 
Property owner(s) and occupant(s) provided with a notice, which may include the posted warning notice informing them about the chemical investigation site public health nuisance, shall promptly act to vacate occupants from those parts of a structure that are a chemical investigation site public health nuisance. This includes dwellings, buildings, motor vehicles, trailers, boats, or appliances.
B. 
Within 10 business days of receiving the Public Health Authority notice and order to clean up the chemical investigation site public health nuisance, the property owner(s) and/or occupant(s) shall act to accomplish the following:
(1) 
Notify the Public Health Authority that the affected parts of the dwellings, buildings, and/or motor vehicles have been and will remain vacated and secured until the Public Health Authority acts to remove the chemical hazard investigation public health nuisance declaration.
(2) 
Contract with one or more acceptable environmental hazard testing and cleaning firms (acceptable firms are those that have provided the Menominee Indian Tribe, the Menominee Environmental Services Department or the Public Health Authority assurance of appropriate equipment, procedures, and personnel) to accomplish the following:
(a) 
Conduct a detailed on-site assessment;
(b) 
Determine the extent of contamination;
(c) 
Carry out and/or direct remediation operations;
(d) 
Perform and/or direct follow-up sampling and testing;
(e) 
Determine that the risks are sufficiently reduced, according to the Clandestine Drug Lab General Cleanup Guidance (CDLGCG), to allow renewed occupancy of the dwelling; and
(f) 
Provide the Public Health Authority with the contractor's plan and schedule for remediation leading to removal of the chemical investigation site public health nuisance declaration.
C. 
The property owner or occupant may also seek authorization for an extension of time to allow the owner time to consider options for arranging cleanup or removal of the affected parts of the structure. The owner or occupant must show good cause for any such extension. Any such extension shall be dependent on the owner's assurance that the affected parts of the structure will not be occupied pending appropriate cleanup or demolition.
D. 
The Public Health Authority may authorize extensions up to 90 calendar days but will make extensions beyond 90 days only with approval of the Menominee Environmental Services Department.
A. 
Pursuant to this article, the property owner shall be responsible for private contractor's fees, cleanup, remediation, and testing of chemical investigation site public health nuisance conditions and the Menominee Tribe's fees and costs of administering notices and enforcing vacating, cleanup, remediation, and testing of affected parts of the property.
B. 
Nothing in this article is intended to limit the property owner's, occupant's, or Tribe's right to recover costs, referenced in this section, from persons contributing to the damage, such as the operators of the clandestine drug lab and/or other lawful sources.
C. 
The fees and costs, referenced above, include but are not limited to the following:
(1) 
Posting the site;
(2) 
Notification of concerned parties;
(3) 
Remediation services;
(4) 
Expenses related to the recovery of costs, including the property assessment process;
(5) 
Administrative fees; and
(6) 
Other services associated with assessing, vacating, and remediation of the property.
D. 
When a property owner transfers remediation costs to the Tribe, the property owner agrees to provide the following to the Tribe: identity of all insurance companies that have policies regarding the property and pending court or contract enforcement actions that may result in recovery of remediation costs and proceeds from pending recovery actions, including but not limited to insurance companies, applicable court actions, and enforcement of contracts. As a precondition to any tribal obligation to make any payments hereunder, the property owner shall make legally sufficient assignment to the Tribe of any of the foregoing which are applicable.
E. 
If there is still an unresolved cost, the Menominee Tribe shall apply for applicable tribal, state and federal funding to offset the cost of remediation and associated eligible tribal expenses.
(1) 
Such funding may include that authorized by federal programs such as the Environmental Protection Agency's Local Government Reimbursement Program.
(2) 
The Tribe shall return amounts that exceed the Tribe's applicable costs to the rightful parties.
F. 
Expenses such as replacement of a structure's damaged furnishings, walls, floors, and ceilings and equipment, vehicles, boats, and trailers are not eligible for tribal funding referenced in this article.
A. 
The Tribe is authorized to proceed, under this section, within 10 business days after mailing of notification, to initiate the assessment and cleanup when the property owner is not located, or is located but fails to respond appropriately, or notifies the Public Health Authority that he or she refuses to or cannot pay the costs or arrange timely assessment and cleanup that is acceptable to the designated Public Health Authority.
B. 
The Menominee Administrative Manager (or the Manager's formally identified designee) shall be fully authorized to act, consistent with tribal law, on behalf of the Tribe to direct funds to assure prompt remediation of chemical investigation sites.
C. 
When the estimated cost of testing, cleanup, and remediation exceeds 75% of the assessed market value of the structure in question, the Tribal Administrative Manager (or the Manager's formally identified designee) is authorized to notify the property owner of the Tribe's intent to remove and dispose of the affected property instead of proceeding with cleaning and remediation.
D. 
The property owner will be given up to 10 business days to appeal to the Tribal Administrative Manager (or the Manager's formally identified designee) and if appealed will be given the opportunity to show cause as to why such removal should not occur. The appeal is also the owner's opportunity to assume responsibility and provide acceptable plans and schedule for effective cleaning, remediation, and testing of the structure. If within 10 business days of the Administrative Manager's notice the owner fails to appropriately appeal or assume responsibility, the Administrative Manager is authorized to arrange removal and disposition of the hazardous structure.
(1) 
An appeal under this section shall be limited to a review by the Menominee Tribal Court.
(2) 
The Court review of this matter shall be limited to the following: was the order against the law, was the order capricious, was the order unreasonable, and was the order the will of the Administrative Manager and not his judgment.
(3) 
The property owner shall reimburse the Tribe for its fees and costs of vacating, securing, and assuring cleanup and testing of the affected parts of the structure.
(a) 
Fees and costs not paid in any other way may be collected through legal action commenced in Tribal Court or any other court of competent jurisdiction as allowed by applicable federal, state, and tribal laws and ordinances.
(b) 
The Tribe may also seek recovery of costs through other methods allowed by applicable tribal, federal and state law.
A. 
The designated Public Health Authority may modify conditions of the declaration and order removal of the declaration of chemical investigation site public health nuisance.
B. 
Such modification or removal shall be only after the Public Health Authority has determined levels of contamination are sufficiently reduced through remediation to warrant modification or removal of the declaration. The Public Health Authority may rely on information from competent sources, including those supplied by the property owner and/or others such as state and local health, safety, and pollution control authorities, to reach such decision.
C. 
When the declaration is modified or removed the Public Health Authority shall forward that information to the County Recorder for addition to the property record if the Recorder has been notified as described above. Similarly, notice shall be provided to the motor vehicle or other license records agency and lien holders if a notice had previously been provided to them.
Waste generated from chemical investigation site public health nuisances shall be treated, stored, transported, and disposed of in accordance with Menominee Indian Tribe and all applicable state, local and federal rules and regulations for solid waste and for hazardous household and other hazardous wastes, including Chapter 361, Article I, Hazardous Waste, of this Code.