United States of America v. Omaha Tribe of Nebraska et al

Filing 13

CONSENT DECREE. Ordered by Judge John M. Gerrard. (MKR)

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
CYNTHIA M. FERGUSON, Senior Litigator
U.S. Department of Justice
Environmental Enforcement Section
Environment and Natural Resources Division
601 D Street, NW
Washington, DC 20004
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for the United States of America
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,
Plaintiff,
v.
OMAHA TRIBE OF NEBRASKA AND
OMAHA TRIBAL UTILITY COMMISSION
Defendants.

CONSENT DECREE
Civil Action No: 8:14-cv-255
Judge John M. Gerrard

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
TABLE OF CONTENTS
I.

JURISDICTION AND PARTIES BOUND ....................................................................... 4

II.

OBJECTIVE ....................................................................................................................... 7

III.

DEFINITIONS .................................................................................................................... 8

IV.

CIVIL PENALTY ............................................................................................................. 11

V.

INJUNCTIVE RELIEF ..................................................................................................... 12

VI.

COMPLIANCE MONITORING, REPORTING AND RECORD KEEPING ................ 22
Quarterly Reports ..............................................................................................................21
Record Keeping ................................................................................................................22
Final Document Disposition .............................................................................................22

VII.

NON-COMPLIANCE WITH CONSENT DECREE ....................................................... 23

VIII.

STIPULATED PENALTIES ............................................................................................ 27

IX.

RIGHT OF ENTRY .......................................................................................................... 30

X.

FORCE MAJEURE .......................................................................................................... 31

XI.

DISPUTE RESOLUTION ................................................................................................ 32

XII.

NOTIFICATION .............................................................................................................. 33

XIII.

GENERAL PROVISIONS ............................................................................................... 35
Certification ......................................................................................................................35
Effect of Settlement/Reservation of Rights ......................................................................35
Fees ...................................................................................................................................38
Effective Date ...................................................................................................................38
Integration and Modifications ...........................................................................................38
Termination .......................................................................................................................39
Retention of Jurisdiction ...................................................................................................41
Public Comment ................................................................................................................41
Final Judgment ..................................................................................................................42

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
WHEREAS, the Omaha Tribe of Nebraska (“OTN” or “Tribe”) is a federally recognized
Indian tribe located on a federal reservation lying along the Missouri River, with sections in both
Nebraska and Iowa;
WHEREAS, Plaintiff United States of America, on behalf of the United States
Environmental Protection Agency (“EPA”), filed a Complaint concurrently with this Consent
Decree alleging that Defendants Omaha Tribe of Nebraska and Omaha Tribal Utility
Commission (collectively the “Defendants”) violated the National Primary Drinking Water
Regulations (“NPDWR ”), 40 C.F.R. Part 141, and Section 1431 of the Safe Drinking Water Act
(“SDWA”), 42 U.S.C. § 300i, at the Macy Public Water Supply System (“Drinking Water
System”); violated Sections 301 and 402 of the Clean Water Act (“CWA”), 42 U.S.C. 33 U.S.C.
§§ 1311 and 1342, at the Macy Public Wastewater Treatment Facility (“Wastewater Facility”);
and violated Section 7003 of the Solid Waste Disposal Act, as amended by and hereafter referred
to as the Resource Conservation and Recovery Act (“RCRA”), and subsequent amendments, 42
U.S.C. § 6973, at the Mother Earth Recycling Center (“Recycling Facility”). The Macy Public
Water Supply System, the Macy Public Wastewater Treatment Facility, and the Mother Earth
Recycling Center (collectively the “Tribal Utilities”) are owned and/or operated by the Tribe and
the Omaha Tribal Utility Commission within the exterior boundaries of the Omaha Tribe of
Nebraska Indian Reservation in Macy, Nebraska (“Omaha Tribe Reservation”);
WHEREAS, the United States alleges that the Defendants failed to comply with the
requirements of an Administrative Order on Consent entered into by the Tribe and EPA on
March 7, 2011 (“March 2011 AOC”). The March 2011 AOC required the Defendants to
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
perform corrective measures to protect the environment and the health of people living, working,
or traveling to Macy, Nebraska. The Defendants’ violations of the March 2011 AOC are
specified in the Complaint;
WHEREAS, the United States alleges that the Defendants have an extensive history of
breakdowns and noncompliance with the SDWA and its implementing regulations, the NPDWR
set forth at 40 C.F.R. Part 141, at the Macy Public Water Supply System and have been issued
four “imminent and substantial endangerment” administrative orders since January 2010. In
addition, EPA has provided compliance assistance to Defendants on numerous occasions to
ensure safe drinking water from its Drinking Water System;
WHEREAS, the United States alleges that the Defendants have a history of
noncompliance with the CWA and its implementing regulations at the Macy Public Wastewater
Treatment Facility and have been issued two administrative orders since February 2009. In
addition, EPA has provided compliance assistance to Defendants on numerous occasions since
2008 to ensure safe wastewater operations from its Wastewater Facility;
WHEREAS, the United States alleges that the Defendants have a history of solid waste
management problems at the Mother Earth Recycling Center and agreed to include a RCRA
Section 7003 “imminent and substantial endangerment” administrative order in the March 2011
AOC to ensure safe management of solid waste at the Recycling Facility and throughout the
Omaha Tribe Reservation. Defendants have also been offered compliance assistance on
numerous occasions by EPA, the Indian Health Service (IHS) agency within the U.S.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Department of Health and Human Services, and the U.S. Department of Agriculture to help
address its solid waste management issues;
WHEREAS, EPA has worked with the Tribe, and will continue to work with the Tribe as
appropriate, pursuant to EPA’s Indian Policies concerning consultation with tribal governments
and enforcement against tribal facilities. EPA has provided, and will continue to provide as
appropriate, compliance assistance to the Tribe in its capacity as a regulatory agency in ensuring
compliance with applicable federal law;
WHEREAS, this Consent Decree does not constitute an admission of either any facts or
liability by the Defendants;
WHEREAS, the Defendants agree that performance of the injunctive relief and
compliance reporting and record keeping set forth in this Consent Decree is in the best interest of
the Tribe and the consumers of the Tribal Utilities;
WHEREAS, the United States has reviewed the Financial Information submitted by the
Defendants to determine whether the Defendants are financially able to pay a civil penalty.
Based upon this Financial Information the United States has determined that the Defendants have
limited financial ability to pay a civil penalty;
WHEREAS, the Macy Public Water Supply System is an aging, small rural water system
that faces the same challenges as many aging, small rural water systems in the United States.
WHEREAS, a review of financial documents provided by the Tribe to the United States
demonstrates a significant shortfall between the revenue generated by utilities ratepayers and the
expenses required to operate and maintain the utilities.
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
WHEREAS, the Tribe now substantially subsidizes the operation of the Tribal Utilities
through its own treasury, and the Tribe has historically contributed financially to the Utilities
Commission to supplement the shortfall between utilities revenue and expenses; until utilities
revenue equals or exceeds expenses, it will likely be necessary for the Tribe to continue
supplementing utilities revenue to continue utilities operation and maintenance.
WHEREAS, the parties have agreed that settlement of the civil judicial claims as alleged
in the Complaint is in the public interest and that entry of this Consent Decree without further
litigation is the most appropriate way to resolve this action.
THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED as follows:

I.
1.

JURISDICTION AND PARTIES BOUND

This Court has jurisdiction over this action under Sections 1414 and 1431 of the

SDWA, 42 U.S.C. §§ 300g-3 and 300i; Section 309 of the CWA, 42 U.S.C. §1319; Section 7003
of RCRA, 42 U.S.C. §6973; and 28 U.S.C. §§ 1331, 1345, and 1355. The Defendants consent to
and shall not challenge entry of this Consent Decree or this Court’s jurisdiction to enter, enforce,
modify, or terminate this Consent Decree.
2.

Venue is proper in the District of Nebraska pursuant to Sections 1414(b) and

1431(b) of the SDWA, 42 U.S.C. §§ 300g-3(b) and 300i(b); Section 7003(b) of the RCRA, 42
U.S.C. § 6973(b); Section 309(b) and (d) of the CWA, 42 U.S.C. § 1319(b) and (d); and 28
U.S.C. §§ 1391(b) and 1395(a), because the violations alleged in the Complaint occurred in this

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
district, the Defendants conduct business in this district, and the Defendants are located in this
district.
3.

The Omaha Tribe of Nebraska is a federally recognized tribe governed by the

Omaha Tribal Council (“Council”) consisting of a Chairman, Vice Chairman, Secretary,
Treasurer, and three additional Council members.
4.

The Omaha Tribal Utility Commission (“OTUC”) is an entity chartered under the

laws of the Omaha Tribe to take on the responsibility for providing solid waste disposal, drinking
water and wastewater treatment services to the Macy, Nebraska community and other reservation
communities located within the exterior boundaries of the Omaha Tribe Reservation. The
Council adopted bylaws and rules and regulations to govern the OTUC.
5.

The obligations of Defendants under this Consent Decree, including obligations to

pay amounts due under this Consent Decree and perform the injunctive relief requirements of
this Consent Decree, are joint and several. In the event of the failure of any one of the
Defendants to meet the obligations under this Consent Decree, the remaining Defendant shall be
responsible for such obligations.
6.

Defendants own and operate the Drinking Water System on the Omaha Tribe

Reservation for the provision to the public of piped water for human consumption. The system
supplies water from a 3-well field to approximately 1,800 users within the exterior boundaries of
the Omaha Tribe Reservation and in the town of Macy, Nebraska through approximately 360
service connections.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
7.
Defendants own and operate the Wastewater Facility for the town of Macy,
Nebraska. The facility treats domestic wastewater from a population of approximately 1,000
people and primarily consists of several miles of sewer lines, a lift station, and a three-cell
wastewater lagoon treatment system that periodically discharges treated effluent to Blackbird
Creek through Outfall 001.
8.

Defendants own and operate a facility known as the Mother Earth Recycling

Center near Macy, Nebraska, in Thurston County, Nebraska, on land located within the exterior
boundaries of the Omaha Tribe Reservation. The Recycling Facility includes a metal sided
building, approximately 70 feet by 36 feet, which is used to house and operate equipment to
recycle cardboard, plastics, and other recyclable materials. The building is located within an
area of approximately two acres that was fenced in April 2011. The area surrounding the
Recycling Facility is primarily farmland, in the alluvial floodplain of the Missouri River, which
flows approximately 1.2 miles north-east of the Recycling Facility.
9.

This Consent Decree shall apply to and be binding upon the United States and the

Defendants and any successor tribal leaders; administrations; executive committees; utility
managers, directors, and operators; utility commissions; utility commission boards; Councils
and/or individual chairpersons acting on behalf of the Omaha Tribe of Nebraska, and any other
person or entity acting on behalf of the Defendants.
10.

The Defendants shall provide a copy of this Consent Decree to all officers,

directors, employees, and agents whose duties might reasonably include compliance with any
provision of this Consent Decree, as well as to any person or entity retained to perform work
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
required under this Consent Decree. The Defendants shall ensure that any contract entered into
to perform work required under this Consent Decree conforms to its terms and conditions.
11.

In any action to enforce this Consent Decree, the Defendants shall not raise as a

defense the failure by any of its members, officers, directors, employees, agents, or contractors to
take any actions necessary to comply with the provisions of this Consent Decree.
12.

Any transfer of ownership or operation of the Tribal Utilities to any other person

or entity must be conditioned upon the transferee’s agreement to undertake the obligations
required by this Consent Decree, as provided in a written agreement between the Defendants and
the proposed transferee, enforceable by the United States as third-party beneficiary of such
agreement. The Defendants shall give notice of this Consent Decree to any subsequent owner or
operator prior to such transfer. The Defendants shall provide a copy of such notice together with
a copy of the proposed written agreement to those persons identified in Section XII
(Notification) sixty (60) days prior to such transfer of ownership or operational responsibilities.
13.

If the Defendants transfer or relinquish the right or duty to operate any of the

Tribal Utilities during the effective period of this Consent Decree, the Consent Decree shall
continue to be binding upon the Defendants as owner of the Tribal Utilities until the Consent
Decree is terminated.
II.
14.

OBJECTIVE

It is the express goal of the parties in entering into this Consent Decree to have the

Defendants achieve and maintain continuous, sustainable, and long-term compliance with the

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
SDWA, CWA, and RCRA in the operation of their Tribal Utilities. All obligations under this
Consent Decree shall be interpreted in a manner consistent with this goal.
III.
15.

DEFINITIONS

Terms used in this Consent Decree that are defined in the SDWA, CWA, or

RCRA, or in regulations promulgated pursuant to those Acts, shall have the meanings assigned
to them in those Acts or such regulations, unless otherwise provided in this Consent Decree.
Whenever the terms set forth below are used in this Consent Decree, the following definitions
shall apply:
“Board” shall mean the Omaha Tribal Utility Commission Board of Commissioners;
“Complaint” shall mean the complaint filed by the United States in this action;
“Commission” or “OTUC” shall mean the Omaha Tribal Utility Commission chartered
under the laws of the Omaha Tribe to take on the responsibility for providing solid waste
disposal, drinking water and wastewater treatment services to the communities located within the
exterior boundaries of the Omaha Tribe Reservation;
“Consent Decree” or “Decree” shall mean this Consent Decree and the following
appendices attached hereto: Appendix A (Financial Information), Appendix B (Utilities
Operating Plan – Budget Requirements), Appendix C (Utilities Operating Plan – Asset
Management Plan Requirements), Appendix D (Quarterly Report Contents), Appendix E
(Operating Contractor General Requirements), Appendix F (Criteria to Demonstrate Technical,
Managerial, and Financial Capacity of the Drinking Water System), and Appendix G (Omaha
Tribal Council Resolution Authorizing the Chairman to Sign Consent Decree);

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
“Council” shall mean the elected leadership of the OTN comprising the Omaha Tribe of
Nebraska Tribal Council;
“CWA” or “Clean Water Act” shall mean the federal Clean Water Act, 33 U.S.C. § 1251
et seq., and its implementing regulations;
“Day” shall mean a calendar day unless expressly stated to be a working day. In
computing any period of time under this Consent Decree, where the last day would fall on a
Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next
working day;
“DOJ” shall mean the United States Department of Justice and any successor
departments, agencies or instrumentalities of the United States;
“EPA” shall mean the United States Environmental Protection Agency and any successor
departments or agencies of the United States;
“Financial Information” shall mean those financial documents identified in Appendix A;
“Force Majeure” shall have the meaning as defined in Paragraph 61.
“Macy Public Water Supply System” or “Drinking Water System” shall mean the public
water system in Macy, Nebraska, within the exterior boundaries of the Omaha Tribe Reservation,
EPA Identification Number 070000007;
“Macy Public Wastewater Treatment Facility” or “Wastewater Facility” shall mean the
wastewater treatment facility located in Macy, Nebraska, owned and operated by the Defendants
subject to National Pollution Discharge Elimination System (“NPDES”) Permit No. NE-0061263
during all relevant times related to this Consent Decree;

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
“Mother Earth Recycling Center” or “Recycling Facility” shall mean the recycling center
located on the Omaha Tribe Reservation encompassing approximately two acres adjacent and
north of BIA Road 5 (also designated as L Avenue), approximately 1.75 miles by road eastnorth-east of Macy, Nebraska;
“NPDWR” shall mean the National Primary Drinking Water Regulations, 40 C.F.R. Part
141;
“OTN” or “Tribe” shall mean the Defendant Omaha Tribe of Nebraska which is a
federally recognized Indian tribe;
“Paragraph” shall mean a portion of this Consent Decree identified by an arabic numeral;
“Parties” shall mean the United States, the OTN, and the Commission;
“Public Water System” means a system that provides piped drinking water for human
consumption to persons within the meaning of Section 1401(4) of the SDWA, 42 U.S.C.
§ 300f(4), and 40 C.F.R. § 141.2.
“RCRA” shall mean the federal Solid Waste Disposal Act (as amended by and also
known as the Resource Conservation and Recovery Act) 42 U.S.C. § 6901, et seq., and its
implementing regulations;
“SDWA” shall mean the federal Public Health Service Act (also known as the “Safe
Drinking Water Act”), 42 U.S.C. § 300f et seq., and its implementing regulations;
“Section” shall mean a portion of this Consent Decree identified by a roman numeral;
“United States” shall mean the Plaintiff United States of America, acting on behalf of
EPA;

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
“Utilities Director” shall mean the person designated by the Tribal Council or OTUC as
being responsible for operation of the utilities programs, including drinking water, wastewater,
and solid waste management activities. The Utilities Director also directs staff personnel
responsible for utilities operations;
“Utilities Operator(s)” shall mean the drinking water and wastewater operator(s) licensed
at the appropriate level by the State of Nebraska under 179 NAC 10.
IV.
16.

CIVIL PENALTY

In satisfaction of the United States’ civil claims specifically alleged in the

Complaint for the Defendants’ violations of the SDWA, CWA, RCRA, and the March 2011
AOC, as of the date of lodging this Consent Decree, the Defendants shall pay to the United
States a civil penalty of $2,000 within thirty (30) Days of the entry of this Consent Decree.
17.

Defendants shall pay the civil penalty due to the United States by certified or

cashier’s check in the amount due, payable to the “U.S. Department of Justice,” referencing the
civil action number of this case and DOJ Case No. 90-5-1-1-10496, and delivered to the
Financial Litigation Unit of the United States Attorney for the District of Nebraska, District of
Nebraska, Financial Litigation Unit, attention: Cassie, 1620 Dodge Street, Suite 1400, Omaha,
Nebraska 68102. The payment shall be made in accordance with instructions provided to
Defendants by the Financial Litigation Unit of the Office of the United States Attorney for the
District of Nebraska. At the time of payment, Defendants shall also send a copy of the check
together with a transmittal letter to those persons identified in Section XII (Notification) of this
Consent Decree. That transmittal letter shall state that the payment is for the civil penalty owed

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
pursuant to the Consent Decree in United States v. Omaha Tribe of Nebraska, et al., and shall
reference the civil action number of this case and DOJ Case No. 90-5-1-1-10496.
V.
18.

INJUNCTIVE RELIEF

Reserve Account. By the Effective Date, Defendants shall establish an interest-

bearing account (the “Reserve Account” or “Account”), in the initial amount of $22,500, to
ensure funding for Tribal Utilities capital improvements or emergency situations only. By seven
(7) months after the Effective Date, Defendants shall fund the Reserve Account at a minimum of
$75,000. By seventeen (17) months after the Effective Date and thereafter, Defendants shall
fully fund the Reserve Account at a minimum of $100,000. For withdrawals made from the
Reserve Account, Defendants shall replenish the Account at $22,500 on a quarterly basis until
the Account is fully funded at $100,000. It shall not be a violation of this Paragraph if qualified
withdrawals are made within seventeen (17) months of the Effective Date and as a result the
Account is not fully funded, as long as the Defendants are replenishing the Account at $22,500
on a quarterly basis. By October 31st of each year, Defendants shall provide a report to EPA
describing all Reserve Account activity for the previous year, including the purpose for each
withdrawal.
19.

Certified Drinking Water and Wastewater Operators. Defendants must retain at

least two (2) people certified as drinking water operators and two (2) people certified as
wastewater operators at all times as follows:
a. The Defendants’ Utilities Operator shall be certified as a licensed drinking
water operator by the state of Nebraska per 179 NAC 10, at Grade III or
higher. If EPA determines that the Public Water System serves a population
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
greater than 2,000, the Defendants’ Utilities Operator shall be certified as a
licensed drinking water operator by the state of Nebraska per 179 NAC 10, at
Grade II or higher. The Utilities Operator shall also be certified as a
wastewater operator by the state of Nebraska per 197 NAC, at Grade L or
higher. If the Utilities Operator’s employment terminates for any reason, the
Defendants shall have thirty (30) days from the date of termination to retain a
new Utilities Operator meeting the above outlined certification criteria.
b. Within one (1) year of the Effective Date of this Decree, another member of
the Defendants’ Utilities staff shall also be certified as a licensed drinking
water operator by the state of Nebraska per 179 NAC 10, at Grade IV or
higher. A staff member shall also be certified as a wastewater operator by the
state of Nebraska per 197 NAC, at Grade L or higher. If the Utilities’ staff
member’s employment terminates for any reason, the OTN shall have thirty
(30) days from the date of termination to train or retain a Utilities staff
member meeting the above outlined certification criteria.
c. Within six (6) months of the Effective Date of this Consent Decree, the
current Utilities Director shall attend training required for certification as a
licensed drinking water operator by the state of Nebraska per 179 NAC 10, at
Grade IV or higher and shall also attend training required for certification as a
wastewater operator by the state of Nebraska per 197 NAC, at Grade L or
higher, but need not be certified as a drinking water or wastewater operator.
The Director must also complete State of Nebraska Continuing Education
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
requirements that would be required to maintain licensure as a drinking water
or wastewater operator, but need not attain licensure status. If the Utilities
Director’s employment terminates for any reason, the Defendants shall have
sixty (60) days from the date of termination to retain a new Utilities Director.
All future Utilities Directors shall attend training as described herein within
six (6) months of being hired.
20.

Training for Chairman of the Omaha Tribal Utility Commission. Within six (6)

months of the Effective Date of this Decree or within six (6) months of being appointed to the
Board, whichever is later, the Chairman of the Board shall complete State of Nebraska drinking
water operator training at Grade IV or higher and must complete State of Nebraska wastewater
operator training at Grade L or higher, but need not be certified as a drinking water or
wastewater operator. The Chairman of the Board must also complete State of Nebraska
Continuing Education requirements that would be required to maintain licensure as a drinking
water or wastewater operator, but need not attain licensure status. All future Chairmen of the
Board shall attend training as described herein within six (6) months of being hired.
21.

Utilities Operating Plan. The Defendants shall develop and implement a Utilities

Operating Plan. The Utilities Operating Plan shall include, at a minimum, a budget for each of
the utilities, a defined rate structure for each of the utilities, job descriptions and associated
qualifications for all personnel employed in the utilities program, and an asset management plan.
The budget and asset management plan shall be developed in accordance with Appendices B and
C of this Consent Decree. On or before June 1, 2015, Defendants shall submit to EPA for review
and approval the budget portion of the Utilities Operating Plan for the coming fiscal year which
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
begins on October 1st. The remainder of the first Utilities Operating Plan shall be submitted to
EPA for review and approval within 18 months of the Effective Date of this Consent Decree.
Defendants shall submit subsequent Utilities Operating Plans to EPA by June 1st of each year for
a period of three (3) years from the date the first report is submitted.
22.

Budget Approval. The annual budgets for the coming fiscal year for each utilities

system included in the Utilities Operating Plan shall be developed consistent with the EPA
approved Utilities Operating Plan for the coming fiscal year and submitted for Council approval
before the end of the Tribe’s fiscal year on September 30th. On or before August 31st each year,
the Council shall annually approve a utility operation and maintenance budget for the coming
fiscal year that is consistent with the EPA approved Utilities Operating Plan. The Council shall
ensure provision of adequate funding to operate and maintain the Tribal Utilities in full
compliance with all applicable federal environmental laws, based on information outlined in the
Utilities Operating Plan.
23.

Customer Database. Within three (3) months of the Effective Date of this

Consent Decree, the Defendants shall develop and maintain a database describing all Macy
utility customers, including name and address. The Defendants shall submit a copy of the
database to EPA upon completion and annually for a period of three years from the Effective
Date of this Consent Decree.
24.

Document Management System. Within six (6) months of the Effective Date of

this Consent Decree, the Defendants shall develop, implement, and maintain a system to manage,
track, and retain all documents related to the management and operation of the utilities.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
25.
Operations and Maintenance Plans. The Defendants shall develop and implement
Operations and Maintenance (O&M) Plans for the drinking water, wastewater, and solid waste
utilities. The Drinking Water O&M Plan shall be submitted to EPA for review and approval
within six (6) months of the Effective Date of this Consent Decree. The Wastewater and Solid
Waste O&M Plans shall be submitted to EPA for review and approval within one year of the
Effective Date of this Consent Decree.
a. The Drinking Water O&M Plan shall be based on guidance found at
http://www.gaepd.org/Files_PDF/techguide/wpb/o&m.pdf.
b. The Wastewater O&M Plan shall incorporate all relevant operational and
maintenance requirements of the Tribe’s NPDES Permit No. NE-0061263,
including at a minimum, monitoring/reporting requirements in Section C and
Section D (Supplemental Conditions) and the requirements in subsections 1
(Facility Maintenance) and 2 (Calibration of Lift Station Equipment).
c. The Solid Waste O&M Plan shall describe regular weekly residential and
commercial waste collections, direct hauling of solid waste to a permitted
RCRA Subtitle D (solid waste) landfill, monthly scheduled pickup of white
goods and large items, monthly collection and disposal of household
hazardous wastes, regular maintenance of collection vehicles, maintaining
solid waste operators with a commercial driver’s license, and maintaining
appropriate vehicle insurance at all times.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Solid Waste
26.

Within four (4) months of the Effective Date of this Consent Decree, the

Defendants shall remove and dispose of all remaining waste at the Recycling Facility in
accordance with all applicable laws.
27.

The Defendants shall hire a qualified contractor to develop and implement a

sampling analysis plan to characterize the nature and extent of any soil contamination at the
Mother Earth Recycling Center. Within six (6) months of the Effective Date of this Consent
Decree, the Defendants shall submit the sampling analysis plan, including a schedule for
implementation of the plan, to EPA for review and approval. Within thirty (30) Days of EPA’s
approval of the sampling analysis plan in accordance with Paragraph 38, the Defendants shall
implement the plan in accordance with the approved schedule. The Defendants shall submit the
results of the sampling and analysis to EPA for review and approval within thirty (30) Days of
completion of the sampling and analysis. Pursuant to the results of the sampling analysis, the
Defendants shall develop a remediation plan for all contaminated areas based upon the analytical
results. Within six months of EPA’s approval of the sampling and analysis results in accordance
with Paragraph 38, the Defendants shall submit the remediation plan, including a schedule for
completion, to EPA for review and approval.
28.

The Defendants shall, as necessary, enact and enforce ordinances to prohibit

dumping of solid and/or hazardous waste at unauthorized locations. The Defendants shall
provide quarterly reports to EPA of solid waste enforcement activity in accordance with the
reporting requirements in Section VI (Compliance Reporting and Record Keeping) of this
Consent Decree.
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Wastewater Utility
29.

The Defendants shall comply with all provisions of Omaha Tribe of Nebraska

NPDES Permit No. NE-0061263, including all monitoring, sampling and reporting requirements.
30.

Within sixty (60) Days of the Effective Date of this Consent Decree, the

Defendants shall replace the lift station and install a backup generator for the lift station. The
Defendants shall provide a completion report to EPA within ten (10) Days of completion.
31.

The Defendants shall consult with EPA at least two (2) weeks prior to any

planned wastewater discharges.
32.

The Defendants shall ensure integrity of wastewater lagoon berms through

ongoing monitoring and maintenance, including but not limited to, appropriate periodic culling
of rodent population, immediately filling all burrowing holes within lagoon berms, and adequate
mowing of grass.
Drinking Water Utility
33.

Immediately upon the Effective Date of this Consent Decree, the Defendants shall

implement the routine SDWA monitoring and reporting provisions as outlined in 40 C.F.R. Part
141.
34.

Within three (3) months of the Effective Date of this Consent Decree, the

Defendants shall prepare and submit to EPA an updated map of the drinking water distribution
system.
35.

Within 18 months of the Effective Date of the Consent Decree, the Defendants

shall install meters and ensure functional operation of meters to measure water consumption at
agricultural and commercial locations. Within three years of the Effective Date of the Consent
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Decree, the Defendants shall install meters and ensure functional operation of meters to measure
water consumption at individual residential locations.
36.

The Defendants shall report to EPA any instances where there is a drop in

pressure in the distribution system to less than 20 pounds per square inch (“psi”), and any
instances where there are significant line breaks (causing water outages to 5 or more users)
within 24 hours of the Defendants’ initial awareness of the pressure loss and/or line break.
37.

Within six months of the Effective Date of this Consent Decree, the Defendants

shall inspect the two finished water high lift pumps at the Drinking Water Plant and perform any
needed repairs. Within two (2) years of the Effective Date of this Consent Decree, the
Defendants shall complete the following activities and submit a completion report to EPA:
a. Procure a spare motor to service the finished water high lift pumps at the
Drinking Water Plant;
b. Install functional flow meters for all water supply wells and for the treated
water delivered from the water treatment plant;
c. Inspect and perform required maintenance on source well high service
pump(s);
d. Inspect and perform required maintenance on the Supervisory Control and
Data Acquisition System (SCADA);
e. Inspect the distribution system to identify illegal connections where
backflow/cross-contamination prevention has not been installed and remove
identified illegal connections;

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
f. Inspect and perform required maintenance at the Backwash Water Collection
Pond;
g. Install permanent back-up generators to supply power to pumps at all water
supply wells;
h. Install surge protection devices to protect against lightning strikes that may
interrupt power to the wells and treatment plant; and
i. Provide access to the fuel storage tanks, wells, and the treatment plant during
inclement weather. This could include a contract with a vendor to provide
snow clearance, or clear evidence of tribal capacity to provide such access.
38.

Approval of Deliverables.
a. Defendants shall submit any plan, report, or other item that it is required to be
submitted to EPA for review and/or approval pursuant to this Consent Decree
in accordance with Section XII (Notification) of this Consent Decree. After
review of any deliverable submitted for approval, EPA will: (i) approve, in
whole or part, the submission; (ii) approve the submission upon specific
conditions; (iii) modify the submission to cure deficiencies; (iv) disapprove, in
whole or part, the submission and provide written comments directing the
Defendants to modify the submission; or (v) any combination of (i) through
(iv). However, EPA will not modify a submission without first providing
Defendants at least one notice of deficiency and an opportunity to cure the
deficiency within ten (10) Days, except where EPA determines that to do so
would cause serious disruption to the work or where EPA has disapproved
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
previous submission(s) due to material defects and EPA determines that the
deficiencies in the submission under consideration indicate a bad faith lack of
effort to submit an acceptable deliverable.
b. In the event of approval, approval upon conditions, or modification by EPA,
pursuant to Paragraph 38a., Defendants shall proceed to take any action
required by the deliverable, as approved or modified by EPA subject only to
Defendants’ right to invoke the Dispute Resolution procedures set forth in
Section XI (Dispute Resolution) of this Consent Decree with respect to the
modifications or conditions made by EPA.
c. Resubmission of Disapproved Deliverable. Within thirty (30) Days of
receiving EPA’s written comments directing Defendants to modify the
submittal, Defendants shall either: (i) alter the submission consistent with
EPA’s written comments and provide the submission to EPA for final
approval, or (ii) submit the matter for dispute resolution under Section XI
(Dispute Resolution) of this Decree. Upon receipt of EPA’s final approval of
the submission, or upon completion of the submission pursuant to dispute
resolution, Defendants shall implement the submission in accordance with the
schedule set forth in the approved submission or, if a schedule is not included
in the submission, the schedule set forth in this Decree.
d. Once approved by EPA, all deliverables, including schedules contained
therein, shall be incorporated into this Consent Decree.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
VI.
COMPLIANCE MONITORING, REPORTING AND RECORD KEEPING
39.

Quarterly Reports. Notwithstanding all other applicable federal reporting and

record keeping requirements, the Defendants shall submit to EPA quarterly progress reports for
the preceding quarter detailing Defendants’ progress in implementing the Injunctive Relief
requirements set forth in the preceding Section V (Injunctive Relief) including, but not limited
to, the items listed in Appendix D of this Consent Decree. Defendants shall submit the quarterly
reports within thirty (30) Days after the end of each quarter (i.e., by April 30, July 30, October
30, and January 30) beginning after lodging of this Consent Decree. The reports are required
until the Consent Decree is terminated pursuant to Paragraph 75, but may, upon written notice
from EPA, be changed to semi-annual submissions.
40.

Record Keeping. Notwithstanding all other applicable federal reporting and

record keeping requirements, the Defendants shall generate, and retain, and instruct its
contractors and agents to preserve and retain, all non-identical copies of notices, reports,
submissions, records and documents (including those in electronic form) that relate in any
manner to the Defendants’ performance of its obligations under this Consent Decree until the
Consent Decree is terminated. The Defendants shall provide as soon as reasonably possible any
of these documents to EPA upon request.
41.

Final Document Disposition. Notwithstanding all other applicable federal

reporting and record keeping requirements, the Defendants shall notify the United States at least
thirty (30) Days prior to the destruction of any notices, reports, submissions, records or
documents subject to this Section and, upon request by the United States, deliver any such
records or documents to EPA. The Defendants may assert that certain documents, records, or
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
other information are privileged under the attorney-client privilege or any other privilege
recognized by federal law. If the Defendants assert such a privilege, they shall provide the
following: (1) the title of the document, record, or information; (2) the date of the document,
record, or information; (3) the name and title of the author of the document, record, or
information; (4) the name and title of each addressee and recipient; (5) a description of the
subject of the document, record, or information; and (6) the privilege asserted. However, no
documents, reports, or other information created or generated pursuant to the requirements of
this Consent Decree shall be withheld on the grounds that they are privileged.
VII.
42.

NON-COMPLIANCE WITH CONSENT DECREE

For failure to comply with the following requirements listed in Paragraphs 42.a

through 42.f of this Consent Decree, the United States may, in the exercise of its discretion,
require the Defendants to enter into an agreement to outsource operation, maintenance, and
management of the Drinking Water System if any one of the following circumstances occurs:
a. For more than sixty (60) consecutive days the Defendants have not employed
a Utilities Operator who is certified as a licensed drinking water operator by
the state of Nebraska (per 179 NAC 10) at Grade III or higher;
b. For more than thirty (30) consecutive days the Defendants have not employed
any Utilities Operators who are certified as a licensed drinking water operator
by the state of Nebraska (per 179 NAC 10) at Grade IV or higher;
c. Defendants fail to timely monitor Total Coliform Rule (“TCR”) sampling as
required by the NPDWR and the Defendants’ TCR sampling plan for three (3)
consecutive months, or four (4) months in any twelve (12) month period;
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
d. Boil water advisories for all or part of the Drinking Water System, as
determined by EPA, have been in effect for a period longer than three (3)
consecutive weeks, unless Defendants have complied with the force majeure
notice requirements of Section X (Force Majeure) of this Consent Decree and
EPA determines that a force majeure event has occurred as defined in
Paragraph 61 and grants an extension in accordance with Paragraph 62;
e. Defendants fail to submit an acceptable Utilities Operating Plan or Operation
and Maintenance Plan as described in Paragraphs 21 and 25, respectively,
according to the deadlines and processes defined therein;
f. Material failure by the Defendants to implement the Utilities Operating Plan
or Operation and Maintenance Plan required by Paragraphs 21 and 25,
respectively.
43.

If EPA determines that the Defendants are required to enter into an agreement to

outsource operation, maintenance, and management of the Drinking Water System, EPA shall
notify Defendants in writing (hereinafter referred to as “Outsourcing Notice”). Defendants shall
have ninety (90) days from receipt of EPA’s Outsourcing Notice to hire a qualified contractor,
the selection of which shall be subject to disapproval by EPA. Within sixty (60) days after
receipt of EPA’s Outsourcing Notice, Defendants shall notify EPA in writing of the name and
qualifications of any contractor Defendants propose to hire and provide EPA with a copy of the
proposed contract. Any contractor selected must meet the qualifications and provide the scope
of services in the proposed contract outlined in Appendix E. EPA will either issue a notice of
disapproval or an authorization to proceed regarding hiring of the proposed contractor.
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
a. If EPA issues a notice to proceed and, at any time thereafter, Defendants
propose to change the contractor, Defendants shall give such notice to EPA
and must obtain an authorization to proceed from EPA before the new
contractor is hired, subject to qualifications outlined in Appendix E.
b. If EPA disapproves a proposed contractor, EPA will notify Defendants in
writing. Defendants shall submit to EPA a list of contractors, including the
qualifications of each contractor, subject to the criteria for qualifications
outlined in Appendix E, within thirty (30) days after receipt of EPA’s
disapproval of the contractor previously proposed. EPA will provide written
notice of the names of any contractor(s) that it disapproves and an
authorization to proceed with respect to any of the other contractors.
Defendants may select any contractor from the list that is not disapproved and
shall notify EPA of the name of the contractor selected within twenty-one (21)
days after EPA’s authorization to proceed.
44.

The duration of Defendants’ initial agreement to outsource operation,

maintenance, and management of the Drinking Water System shall be a minimum of three years.
If Defendants elect to terminate the outsourcing agreement at the conclusion of its term,
Defendants shall notify EPA in writing at least sixty (60) days prior to the date Defendants
propose to terminate the outsourcing agreement. The notification shall include supporting
documentation sufficient to demonstrate that Defendants have adequate technical, managerial,
and financial capacity to operate, maintain, and manage the Drinking Water System, in
accordance with the criteria outlined in Appendix F.
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
a. If EPA determines that Defendants have demonstrated adequate technical,
managerial and financial capacity to operate, maintain, and manage the
Drinking Water System, EPA shall notify Defendants in writing and
Defendants shall resume operation of the system in according with the
provisions of the Utilities Operating Plan and Drinking Water O&M Plan.
b. If EPA determines that Defendants have not demonstrated adequate technical,
managerial and financial capacity to operate, maintain, and manage the
Drinking Water System, EPA shall notify Defendants in writing and
outsourcing shall continue for a minimum of one additional year in
accordance with the provisions outlined in Paragraph 43. Thereafter, on an
annual basis, Defendants may submit to EPA a request to terminate the
outsourcing agreement. The request must be submitted at least sixty (60) days
prior to the date Defendants propose to terminate the outsourcing agreement.
With each request Defendants shall include documentation to demonstrate that
Defendants have adequate capacity to operate, maintain, and manage the
Drinking Water System, as described in this Paragraph 44. Outsourcing shall
remain in place until Defendants receive notification from EPA, in accordance
with Paragraph 44.a, that Defendants have demonstrated the capacity
necessary to resume operation of the Drinking Water System.
45.

Nothing in this Section shall be construed to limit the United States’ ability to

seek any remedy, including injunctive relief, civil and/or criminal penalties otherwise provided
by law for any violation of this Consent Decree, the SDWA, RCRA, or CWA.
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
VIII.
STIPULATED PENALTIES
46.

The Defendants shall be liable for stipulated penalties in the amounts set forth

below to the United States for failure to comply with the requirements of this Consent Decree,
the SDWA, CWA, and RCRA. “Compliance” by the Defendants shall include full and
satisfactory completion of the activities under this Consent Decree. A violation includes, but is
not limited to, failing to perform an obligation in accordance with any approved work plan or
time schedule required by this Consent Decree, including the Appendices, or any plan later
incorporated into this Consent Decree.

Violations

Stipulated Penalties Per Day

Late Payment of any/all of the
Civil Penalty (Paragraph 16)

1st through 7th day
8th through 14th day
Each day thereafter

$ 250
$ 500
$ 800

Failure to comply with the
requirements of Section
V(Injunctive Relief)

1st through 7th day
8th through 14th day
Each day thereafter

$ 250
$ 600
$1,000

Failure to comply with the
requirements of Section
VI(Compliance Reporting and
Record Keeping)

1st through 7th day
8th through 14th day
Each day thereafter

$ 125
$ 300
$ 500

Failure to comply with the
requirements of Section
VII(Non-Compliance with
Consent Decree) for termination
of outsourcing

1st through 7th day
8th through 14th day
Each day thereafter

$ 250
$ 600
$1,000

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
47.
All stipulated penalties shall begin to accrue on the first day that performance is
delinquent or a violation of this Consent Decree occurs, and continue to accrue through the final
day of the completion of the activity or correction of the violation.
48.

Upon entry of this Consent Decree, the stipulated penalty provisions of this

Consent Decree shall be enforceable with regard to any and all violations that have occurred
between lodging and entry of this Consent Decree.
49.

Stipulated penalties shall become owing upon written demand by EPA and are

due on or before the fifteenth (15th) of the month following the month the written demand is
received. The Defendants shall, as directed by the United States, pay stipulated penalties owing
to the United States in accordance with this Section, including providing a copy of the payment
concurrently to those persons identified in Section XII (Notification).
50.

Defendants shall not use funds from the Reserve Account, established pursuant to

Paragraph 18, to pay stipulated penalties.
51.

If the Defendants fail to pay civil or stipulated penalties according to the terms of

this Consent Decree, the United States shall be entitled to collect interest on such penalties, as
provided for in 28 U.S.C. § 1961.
52.

The United States may, in the unreviewable exercise of its discretion, reduce or

waive stipulated penalties, and/or the interest on such penalties, otherwise due under this
Consent Decree.
53.

The Defendants shall be liable for stipulated penalties due to the United States

unless excused under Paragraph 52 or Section X (Force Majeure).

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
54.
Stipulated penalties shall continue to accrue during any Dispute Resolution, with
interest on accrued penalties payable and calculated at the rate established by the Secretary of the
Treasury, pursuant to 28 U.S.C. § 1961, but need not be paid until the following:
a. If the dispute is resolved by agreement or by a decision of EPA that is not
appealed to the Court, the Defendants shall pay accrued penalties determined to
be owing, together with interest, to the United States within thirty (30) Days of
the effective date of the agreement or the receipt of EPA’s decision or order;
b. If the dispute is appealed to the Court and the United States prevails in whole or
in part, the Defendants shall pay all accrued penalties determined by the Court to
be owing, together with interest, within sixty (60) Days of receiving the Court’s
decision or order, except as provided in Paragraph 54.c., below;
c. If any party appeals the District Court’s decision, the Defendants shall pay all
accrued penalties determined to be owing, together with interest, within fifteen
(15) Days of receiving the final appellate court decision.
55.

Nothing in this Section shall be construed to limit the United States’ ability to

seek any remedy, including injunctive relief, civil and/or criminal penalties otherwise provided
by law for any violation of this Consent Decree, the SDWA, RCRA, or the CWA. Section
XI (Dispute Resolution) of this Decree shall be the exclusive mechanism for disputes arising
under or with respect to this Section of the Decree. However, decisions made by the United
States pursuant to Paragraph 52 of this Section are unreviewable and therefore not subject to
dispute resolution.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
IX.
RIGHT OF ENTRY
56.

EPA and its contractors, consultants, agents and attorneys shall have the authority

until this Consent Decree is terminated to enter any property owned, operated, or served by the
Defendants at all times for the purpose of monitoring the progress of activities required under
this Consent Decree, including but not limited to:
a. verify any data or information submitted to the United States in accordance
with the terms of this Consent Decree;
b. obtain samples and, upon request, splits of any samples taken by the
Defendants or their representatives, contractors, or consultants;
c. obtain documentary evidence, including photographs and similar data; and
d. assess the Defendants’ compliance with this Consent Decree.
57.

All inspections or visits conducted under this Consent Decree shall be performed

in accordance with the inspection and notification protocol set forth in the EPA Region 7 Policy
for Environmental Protection in Indian Country. In the event of an emergency, EPA will notify
the Defendants’ chairman of the Utilities Commission Board by telephone, leaving a message if
no one answers, describing the nature of the emergency and the property requiring immediate
access.
58.

Upon request, and where reasonably possible, EPA will split samples, enabling

the Defendants to send samples to their own laboratory for confirmation of results.
59.

This provision in no way limits or otherwise affects any right of entry held by

EPA pursuant to applicable federal, tribal, or local laws or regulations.

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
X.
FORCE MAJEURE
60.

The Defendants shall satisfy the requirements of Section V(Injunctive Relief)

except to the extent, and for the period of time, that such performance is prevented or delayed by
events which constitute a force majeure.
61.

For the purpose of this Consent Decree, a force majeure is defined as any event

arising from circumstances beyond the control of the Defendants and that cannot be overcome by
the Defendants’ diligent and timely efforts. Economic hardship, normal inclement weather,
changes in the Defendants’ elected officials, and increased costs of performance shall not be
considered events beyond the reasonable control of the Defendants for purposes of determining
whether an event is a force majeure.
62.

In the event of a force majeure, the time for performance of the activity delayed

by the force majeure shall be extended for the time period of the delay attributable to the force
majeure. The time for performance of any activity dependent on the delayed activity shall be
similarly extended, except to the extent that the dependent activity can be reasonably
implemented in a shorter time. EPA shall determine whether dependent activities will be
delayed by the force majeure and whether the time period should be extended for performance of
such activities. The Defendants shall adopt all reasonable measures to avoid or minimize any
delay caused by a force majeure.
63.

When an event occurs, has occurred, or is reasonably expected to occur that may

delay or prevent the performance of any obligation under this Consent Decree and which the
Defendants believes is a force majeure, the Defendants shall notify by telephone the EPA
representative identified in Section XII (Notification) within 24 hours of the Defendants’
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
knowledge of such event. Telephone notification shall be followed by written notification, made
within seven (7) working days of the Defendants’ knowledge of the event. The written
notification shall fully describe: the event that may delay or prevent performance; reasons for the
delay; the reasons the delay is beyond the reasonable control of the Defendants; the anticipated
duration of the delay; actions taken or to be taken to prevent or minimize the delay; a schedule
for implementation of any measures to be taken to mitigate the effect of the delay; and the time
needed to implement any dependent activities.
64.

The Defendants’ failure to comply with the force majeure notice requirements

provided in Paragraph 63, above, for any delay in performance will be deemed an automatic
forfeiture of its right to assert that the delay was caused by a force majeure.
XI.
65.

DISPUTE RESOLUTION

Unless otherwise expressly provided for in this Consent Decree, the dispute

resolution procedures of this Section shall be the exclusive mechanism for disputes arising under
or with respect to this Decree. If the Defendants disagree with any determination made by EPA
under this Consent Decree related to (1) stipulated penalties, (2) injunctive relief, (3) Section VII
(Non-Compliance With Consent Decree), (4) force majeure, or (5) the termination of the
Consent Decree, Defendants shall send written notice to EPA and DOJ outlining the nature of the
dispute and requesting informal negotiations to resolve the dispute. Such period of informal
negotiations shall not extend beyond thirty (30) working days from the date when the notice was
sent unless the parties agree otherwise.
66.

If the informal negotiations are unsuccessful, the determination of EPA shall

control, unless the Defendants file a motion with this Court for dispute resolution. Any such
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
motion must be filed within thirty (30) Days after receipt by the Defendants of a notice in writing
terminating informal negotiations, and such motion must be concurrently sent to DOJ and EPA
in accordance with Section XII (Notification) of this Consent Decree. The United States shall
respond to the Defendants’ motion within the time period allowed by the Local Rules of this
Court. Defendants may file a reply memorandum, to the extent permitted by the Local Rules.
67.

The invocation of formal dispute resolution procedures under this Section shall

not, by itself, extend, postpone or affect in any way any obligation of the Defendants under this
Consent Decree, unless and until final resolution of the dispute so provides. Stipulated penalties
with respect to the disputed matter shall continue to accrue but payment to the United States shall
be stayed pending resolution of the dispute. In the event that the Defendants do not prevail on
the disputed issue, stipulated penalties shall be assessed and paid as provided in Section VIII
(Stipulated Penalties).
XII.
68.

NOTIFICATION

Notifications, certifications, reports, or other communications required pursuant

to this Consent Decree shall be deemed submitted on the date: (1) postmarked and sent by
certified mail, return receipt requested; (2) sent by facsimile transmission, with confirmation of
receipt; (3) sent by overnight delivery service; or (4) sent by email, with confirmation of receipt.
If a notification, certification, report or other communication required by this Consent Decree is
sent by first class mail, it shall be deemed submitted on the date that it is actually received.
Except as specified otherwise, when written notification to or communication with a party is
required by the terms of this Consent Decree, it shall be addressed as follows:

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
As to the United States:
For DOJ
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Post Office Box 7611 - Ben Franklin Station
Washington, D.C. 20044-7611
Reference Case DJ No. 90-5-1-1-10496
Cynthia M. Ferguson, Senior Litigator
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D Street NW
Washington, DC
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
For EPA
Chris Muehlberger, Assistant Regional Counsel
U.S. EPA Region 7
11201 Renner Boulevard
Lenexa, Kansas 66219
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
As to the Omaha Tribe of Nebraska:
Chairman, Omaha Tribe of Nebraska Council
Clifford Wolfe, Jr.
101 Main Street
P.O. Box 368
Macy, Nebraska 68039
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Maurice Johnson, Attorney General for Omaha Tribe of Nebraska
101 Main Street
P.O. Box 368
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Macy, Nebraska 68039
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Derrina Jackson, Utilities Director
102 Skunkhollow Drive
Macy, Nebraska 68039
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Carlton LeCount, Acting Utilities Commission Chairman
102 Skunkhollow Drive
Macy, Nebraska 68039
Telephone: [phone] (extension 102)
Fax: [phone]
E-mail: [e-mail]
Any Party may, by written notice to the other Parties, change its designated notice recipient or
notice address provided above.
69.

All submissions made pursuant to this Consent Decree shall be signed and

affirmed by a responsible official of the Defendants using the following certification statement:
I certify under penalty of law that I have examined and am familiar with the
information submitted in this document and all attachments and that, based on
inquiry of those individuals immediately responsible for obtaining the
information, I certify that the information is true, accurate, and complete to the
best of my knowledge, information, and belief. I am aware that there are
significant penalties for submitting false information, including the possibility of
fines and imprisonment.
XIII.
70.

GENERAL PROVISIONS

Certification. Defendants certify that, to the best of their knowledge and belief,

after thorough inquiry, they have submitted to the United States Financial Information that fairly,
accurately, and materially sets forth their financial circumstances, and that those circumstances

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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
have not materially changed between the time the Financial Information was submitted to the
United States and the time Defendants signed this Consent Decree.
71.

Effect of Settlement/Reservation of Rights.
a. Except as provided in Paragraph 71.d, This Consent Decree resolves the civil
claims of the United States for the violations alleged in the Complaint through
the date of lodging of this Decree.
b. This settlement is conditioned upon the veracity and completeness of the
Financial Information provided to the United States by the Defendants.
Notwithstanding any other provision of this Consent Decree, the United States
reserves, and this Consent Decree is without prejudice to, the right to
reinstitute or reopen this action, or to commence a new action seeking relief
other than as provided in this Consent Decree, if the Financial Information
provided by Defendants, or the financial certification made by the Defendants
in Paragraph 70, is false or, in any material respect, inaccurate. Defendants
shall forfeit all payments made pursuant to this Consent Decree.
c. The United States reserves all legal and equitable remedies available to
enforce the provisions of this Consent Decree, except as expressly stated in
Paragraph 71.a. This Consent Decree shall not be construed to limit the rights
of the United States to obtain penalties or injunctive relief under the SDWA,
CWA, or RCRA, or implementing regulations, or under other federal laws,
regulations, or permit conditions, except as expressly specified in Paragraph
71.a. The United States further reserves all legal and equitable remedies to
36

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
address any imminent and substantial endangerment to the public health or
welfare or the environment arising at, or posed by, the Tribal Utilities,
whether related to the violations addressed in this Consent Decree or
otherwise.
d. The United States further reserves all legal and equitable remedies available to
address, or to require Defendants to address, any and all contamination at the
Mother Earth Facility.
e. In any subsequent administrative or judicial proceeding initiated by the United
States for injunctive relief, civil penalties, other appropriate relief relating to
the Tribal Utilities, Defendants shall not assert, and may not maintain, any
defense or claim based upon the principles of waiver, res judicata, collateral
estoppel, issue preclusion, claim preclusion, claim-splitting, or other defenses
based upon any contention that the claims raised by the United States in the
subsequent proceeding were or should have been brought in the instant case,
except with respect to claims that have been specifically resolved pursuant to
Paragraph 71.a. of this Section.
f. This Consent Decree is not a permit, or a modification of any permit, under
any federal, tribal, state, or local laws or regulations. This Consent Decree in
no way affects the Defendants’ responsibilities to comply with all federal,
tribal, or local laws, regulations, or permits. Defendants’ compliance with this
Consent Decree shall be no defense to any action commenced pursuant to any
such laws, regulations, or permits, except as set forth herein. The United
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
States does not, by its consent to the entry of this Consent Decree, warrant or
aver in any manner that Defendants’ compliance with any aspect of this
Consent Decree will result in compliance with provisions of the SDWA,
CWA, RCRA, or with any other provisions of federal, tribal, state, or local
laws, regulations, or permits.
g. Nothing in this Consent Decree shall diminish EPA’s ability to request
information from the Defendants under applicable laws and regulations.
h. This Consent Decree does not limit or affect the rights of the Plaintiff or
Defendants against any third parties (parties not specifically part of this
Consent Decree), nor does it limit the rights of such third parties against the
Defendants except as provided by law.
i. This Consent Decree shall not be construed to create rights in, or grant any
cause of action to, any third party not party to this Consent Decree.
72.

Fees. Each party shall bear its own costs and attorney’s fees in this action.

73.

Effective Date. This Consent Decree shall be effective upon the date that it is

entered by the Court (“Effective Date”). As provided in Section VIII (Stipulated Penalties), the
stipulated penalty provisions of this Consent Decree shall be retroactively enforceable with
regard to any and all violations that have occurred between lodging and entry of this Consent
Decree and Section X (Force Majeure) and Section XI (Dispute Resolution) shall be available
with respect to such violations.
74.

Integration and Modifications. The terms of this Consent Decree, including any

attached appendices, may be modified only by a subsequent written agreement signed by all the
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United States v. Omaha Tribe of Nebraska, et al. Consent Decree
Parties. Where the modification constitutes a material change to this Decree, it shall be effective
only upon approval by the Court.
75.

Termination.
a. If the Defendants have not been required to outsource operation, maintenance,
and management of the Drinking Water System pursuant to Paragraph 42 of
this Consent Decree, the Defendants may make a written request to the United
States to terminate the Consent Decree after the Defendants i) complete all
injunctive relief specified in this Consent Decree; ii) pay all outstanding
penalties; iii) have remained in material compliance with the SDWA, CWA,
and RCRA (as determined by EPA) for four (4) consecutive years following
the Effective Date of this Consent Decree; and iv) have submitted
documentation to EPA demonstrating that the Defendants have the technical,
financial, and managerial capacity to maintain compliance with the SDWA,
CWA, and RCRA (as determined by Appendix F) or submitted documentation
to EPA demonstrating that the Defendants have outsourced the operation,
maintenance, and management of the Drinking Water System. If the United
States determines that the Defendants have met conditions i) through iv) in
this sub-paragraph, then the United States shall move for termination of this
Consent Decree. If EPA determines that Defendants have materially violated
the SDWA, CWA, and/or RCRA within the four-year period, then EPA may
elect to delay termination of the Consent Decree after the four-year period.

39

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
EPA may delay termination until Defendants have been in compliance with
the SDWA, CWA, and RCRA for 12 consecutive months.
b. If Defendants have been required to outsource operation, maintenance, and
management of the Drinking Water System pursuant to Paragraph 42 of this
Consent Decree, the Defendants may make a written request to the United
States to terminate the Consent Decree after the Defendants i) complete all
injunctive relief specified in this Consent Decree; ii) pay all outstanding
penalties; iii) have remained in material compliance with the SDWA, CWA,
and RCRA for four (4) consecutive years following the Effective Date of this
Consent Decree; and iv) have submitted documentation to EPA demonstrating
that the Defendants have the technical, financial, and managerial capacity to
maintain compliance with the SDWA, CWA, and RCRA (as determined by
Appendix F) or have submitted documentation to EPA certifying that the
Defendants have elected to continue outsourcing the operation, maintenance,
and management of the Drinking Water System. If the United States
determines that the Defendants have met conditions i) through iv) in this subparagraph, then the United States shall move for termination of this Consent
Decree. If EPA determines that Defendants have materially violated the
SDWA, CWA, and/or RCRA within the four-year period, then EPA may elect
to delay termination of the Consent Decree after the four-year period. EPA
may delay termination until Defendants have been in compliance with the
SDWA, CWA, and RCRA for 12 consecutive months.
40

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
c. At Defendants’ discretion, and subject to EPA approval, the Defendants may
make a written request to the United States to terminate the Consent Decree
after three (3) years following entry of this Consent Decree and any time
thereafter prior to the end of its four (4) year effective period. Any such
request by the Defendants shall be accompanied by a certification, consistent
with Paragraph 69, that the Defendants have satisfied all obligations of the
Consent Decree along with supporting documentation.
d. After receiving a written request from the Defendants to terminate the
Consent Decree, the United States shall provide the Defendants with a written
determination whether it intends to terminate the Consent Decree. If the
United States does not file a motion to terminate the Consent Decree within
thirty (30) Days after receipt of the Defendants’ written request, the
Defendants may file a motion with the Court to terminate the Consent Decree.
The United States reserves the right to object to any motion to terminate filed
by the Defendants if the Defendants have not attained compliance with all
requirements of this Consent Decree.
76.

Retention of Jurisdiction. The Court shall retain jurisdiction over this case until

the Consent Decree is terminated, for the purpose of resolving any disputes arising under this
Consent Decree, entering orders modifying this Consent Decree, or effectuating or enforcing
compliance with the terms of this Consent Decree.
77.

Public Comment. The Defendants agree and acknowledge that final approval of

this Consent Decree by the United States and entry of this Consent Decree is subject to the
41

United States v. Omaha Tribe of Nebraska, et al. Consent Decree
requirements of 28 C.F.R. § 50.7, which provides for notice of the lodging of this Consent
Decree in the Federal Register, opportunity for public comment for at least thirty (30) days, and
consideration of any comments prior to entry of the Consent Decree by the Court. This Consent
Decree is also subject to the opportunity for a public meeting in the affected area requirement in
accordance with RCRA Section 7003(d), 42 U.S.C. § 6973(d). The United States reserves its
right to withdraw consent to this Consent Decree based on comments received during the public
notice period. The Defendants consent to entry of this Consent Decree without further notice
and agree not to withdraw from or oppose entry of this Consent Decree by the Court or to
challenge any provision of the Decree, unless the United States has notified Defendants in
writing that it no longer supports entry of the Decree.
78.

Final Judgment. Upon entry by this Court, this Consent Decree shall constitute a

final judgment for purposes of Federal Rules of Civil Procedure 54 and 58.

SO ORDERED THIS 27TH DAY OF OCTOBER, 2014

________________________________
UNITED STATES DISTRICT JUDGE

42

United States v. Omaha Tribe ofNebraska, et al. Consent Decree
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States v.
Omaha Tribe ofNebraska, et al, subject to the public notice and comment requirements of28
C.F.R. ~ 50.7.

For the Plaintiff United States of America:

~_,,
DATED:

Z 7 2Ul y
RIAN JR.
THOMAS A.
Section Chief
Deputy
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Post Office Box 7611
Washington, D.C. 20044-7611

~
DATED: L~'; oZ

~

~~ _~~~ ~/~.Q~_

(
oZU

CYNTHIA M.FERGUSON
Senior Litigator
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D Street NW
Washington, DC 20004
Telephone:[phone]
Facsimile:[phone]
E-mail: Cvnthia.Fer u~(a~usdoj.~

43

~Inited States v. Omaha Ti•ibe ofNeb~~aska, ct czl. Consent Decree
THE UNDERSIGNED PARTY enters into this Consent Decy~ee in the na~utter of Unzted States v.
Omaha Tribe ofNebraska, et al, subject to the ~~ublzc notice and comment requirements of28
C.F.R. ~ 5D. ?.

For the Plaintiff United States Environmental Protection Agency:

DATED:
r

5 /
S SAN SHIN
AN
Director
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency

45

Omaha Tribe of NE Consent Decree – Appendix A

6-19-2014

Omaha Tribe Consent Decree – Appendix A
Financial Information
1. Omaha Tribe of Nebraska Financial Statements with Supplemental Information and
Accompanying Independent Auditor’s Reports for Year Ended Sept. 30, 2009 (FY2009) and
ear Ended Sept. 30, 2010 (FY2010) by Bland & Associates, P.C. Certified Public Accountants
2. Omaha Tribe of Nebraska Primary Government Financial Statements with Supplemental
Information and Accompanying Independent Auditor’s Report Sept. 30, 2011 (FY2011) by
REDW LLC CPAs, Business & Financial Advisors
3. Omaha Tribal Council Budget FY 2012-2013 (Oct. 1, 2012 – Sept. 30, 2013); Omaha Tribe of
Nebraska Tribal Appropriations 2013-2014 Budget
4. Omaha Tribe of Nebraska FY2013 Account Codes - information on Tribal departments and
their accounts
5. Omaha Tribe of Nebraska Purchasing Management Policy and Procedure passed at Omaha
Tribal Council Meeting July 21, 2011
6. Poverty and Unemployment on the Omaha Reservation by Mark Gordon, Nebraska Indian
Community College
7. 2012 U.S. Return of Partnership Income prepared for Omaha Nation C-Store, LLC by Clinton
Peterson CPA, PC
8. 2009 Omaha Tribe of Nebraska Resolution # 10-14 Re: Blackbird Bend Corporation, charter
showing Tribe’s interest and relationship
9. January 12, 2012 Casino Omaha Independent Auditors’ Report for fiscal year ending
September 30, 2011 by Hinton, Burdick, Hall & Spilker Nevada, LC.
10. April 29, 2010 Casino Omaha (an enterprise fund of the Omaha Tribe of Nebraska) Financial
Statements for the year ended September 30, 2009 with Independent Auditors’ Report by
Hinton, Burdick, Hall & Spilker Nevada, LC
11. December 20, 2012 Lucky 77 Casino Financial Statement for the year ended September 30,
2012 with Independent Accountants’ Review Report by Hinton, Burdick, Hall & Spilker
Nevada, LC; January 25, 2012 Lucky 77 Casino Financial Statement for the year ended
September 30, 2011 with Independent Accountants’ Review Report by Hinton, Burdick, Hall
& Spilker Nevada, LC; November 24, 2010 Lucky 77 Casino Financial Statement for the years
Page 1 of 2

Omaha Tribe of NE Consent Decree – Appendix A

6-19-2014

ended September 30, 2010 and 2009 with Independent Auditors’ Review Report by Hinton,
Burdick, Hall & Spilker Nevada, LC; January 22, 2010 Lucky 77 Casino Financial Statement for
the year ended September 30, 2009 with Independent Auditors’ Review Report by Hinton,
Burdick, Hall & Spilker Nevada, LC
12. Utilities budgets for water/wastewater and solid waste, prepared by the Omaha Tribe of
Nebraska at EPA’s request.
13. Information prepared by the Tribal CFO on the financial health and resources of the Omaha
Tribe of Nebraska at EPA’s request
14. December 2, 2013 and December 12, 2013 Letters to Dan Lewis, Attorney, Shanker &
Kewenvoyouma, P.L.L.C. from Derrina Jackson, Interim Director for Omaha Tribal Utilities
Department – responding to Question 3a-3h of the United States’ Tribal Government Ability
to Pay Initial Request for Information
15. December 12, 2013 Letter to Dan Lewis, Attorney, Shanker & Kewenvoyouma, P.L.L.C. from
Derrina Jackson, Interim Director for Omaha Tribal Utilities Department
16. Omaha Tribal Utilities Department General Ledger as of December 3, 2013; Omaha Tribal
Utilities Department A/P Aging Summary as of December 3, 2012; Omaha Tribal Utilities
Department A/R Aging Summary as of December 31, 2012
17. Omaha Tribal Utilities bank statements 12-24-2009 through 12-30-2011, and 11-27-2012
through 12-02-2013
18. Omaha Tribal Utilities account of bank transactions 11-27-2012 through 12-02-2013
19. Omaha Tribal Utilities Department invoice for February, 2013 - example of billing
20. Omaha Tribe of Nebraska Project Financial Analysis Questions 10-22-2013 – responses to
Environmental Finance Center inquiry
21. Lucky 77 Casino bank statements dated Dec. 31, 2012, Jan. 31, 2013
22. Casino Omaha bank statements for Dec. 3, 2012 through Dec. 31, 2012, and Jan. 2, 2012
through Jan 31, 2012

Page 2 of 2

Omaha Tribe of NE Consent Decree – Appendix B

6-19-2014

Omaha Tribe Consent Decree – Appendix B
Utilities Operating Plan
Budget Requirements
1. Provide a budget for the drinking water, wastewater and solid waste management utilities that
addresses a 5-year time frame. The budget shall identify:
•
•
•
•

Revenue
Operating expenses
Reserve funds
Capital improvement plans

2. The budget shall compare all anticipated revenue and planned expenditures, discuss the Reserve
Account to be used for emergency situations and equipment replacement, and include a capital
improvement plan that identifies future projects and their anticipated costs.
3. The budget shall include a description of the expenditure control procedures, processes and reports
that are in place to assure adequate fiscal control, describe purchasing procedures or policies to
prevent misuse of funds, and include information to indicate whether the utility systems have
adopted generally accepted accounting and auditing procedures.
4. Describe processes for regular review of the utilities rate structure.
5. Describe processes for planning and funding long-term capital needs and to address emergency
issues.
6. Complete the attached budget worksheets (Exhibit 1)

APPENDIX B EXHIBIT 1

WORKSHEET A - EXPENSE BUDGET

1A
2A
3A
4A
5A
6A
7A
8A
9A
10A
11A
12A
13A
14A
15A
16A
17A
18A
19A
20A

Prior Year

Current Year

Actual
Budget

Year 1

Year 2

Annual
Budget

Year 3

Year 4

Projected Budget

Expenses
Personnel Costs
Utilities
Outside Services
Small Equipment, Materials, and Parts
Purchased Water
Chemicals, Treatment, and Monitoring
Transportation
Office Supplies
Customer Billing and Collection
Income Tax
Property taxes or payments in lieu of taxes

Depreciation (please see instructions)
Total Expenses (total lines 2A to 19A)

$

$

A-13

$

$

$

$

APPENDIX B EXHIBIT 1
WORKSHEET A - EXPENSE BUDGET
Expenses
Personnel costs. Enter the cost of salaries and benefits of the water system’s operators and administrative employees.
Utilities. Enter the annual utility bill of the water system. Utilities include any power supply, including gas and electric,
water supply, sewage treatment, and telephone/fax bills among others.
Outside services. Enter the total cost of any services that the water system hires another company or individual to
perform. These services can include, but are not limited to, the provision of insurance, external auditors and other
accounting services, legal services, architects, engineers, consultants, contractors, etc.
Small equipment, materials, and parts. Enter the total annual cost of any equipment, materials, and parts that are
purchased to make repairs or otherwise maintain the water system. Only enter those items which will be paid for in a
single year. Other items that have a long life (ten or fifteen years at a minimum), have a high cost that must be paid for
over time, and are nonrecurrent should be added to capital outlays on Worksheet B.
Purchased water. Enter the total annual cost of any water that the water system purchases from other sources and then
redistributes to the customers of the water system.
Chemicals, treatment, and monitoring. Enter the total annual cost of water treatment chemicals, other costs associated
with treating the water, and the cost of monitoring water quality, including the cost of all monitoring and testing
equipment.
Transportation. Enter the costs that the water system incurs for transportation-related expenses. Among others, these
include the direct cost of vehicles and vehicle maintenance and repair.
Office supplies. Enter the cost of supplies that are used in administrative work. These supplies include paper, pens, etc.
Customer billing and collection. Enter the expenses that the water system incurs in sending out customer bills and
collecting payments (do not include the associated costs of personnel nor outside services).
Income Taxes. Enter the amount of the water system’s annual income taxes, if applicable.
Payments in lieu of taxes. Enter the value of any taxes paid on property or any payments made in lieu of taxes.
Other. Several blank lines are available to enter other expenses not included above that the water system may incur.
Depreciation Expense . Depreciation refers to the decrease in value of property, plant, and equipment over time. If it is
not a practice of your water system to account for depreciation, leave the depreciation expense line blank. If it is a
practice of your water system to account for depreciation and you contribute to a replacement/depreciation fund each
year and the amount that you contribute is greater than or equal to your annual depreciation expense, leave depreciation
expense blank. However, if you do not have a replacement fund or contribute significantly less to your replacement
fund than the value of your depreciation expense enter your depreciation expense on Worksheet A.

Total Expenses. Enter the sum of all the expenses listed above.

A-14

APPENDIX B EXHIBIT 1

WORKSHEET B - CAPITAL BUDGET

1B
2B
3B
4B
5B
6B
7B
8B
9B
10B
11B
12B
13B
14B
15B
16B
17B
18B
19B
20B
21B
22B
23B
24B
25B

Prior Year

Current Year

Actual
Budget

Annual
Budget

Year 1

Year 2

Year 3

Year 4

Projected Budget

Capital Outlays
New Capital Facilities
Renewal and Replacement Facilities

Total Capital Outlays (total lines 2B to 7B)
Capital Sources
Loan/Bond Proceeds
Equity
Contributions/Connection fees
Draw from Replacement Reserve
Grant Funds

$

$

$

$

$

$

Total Capital Sources (total lines 10B to 17B)
NET CAPITAL OUTLAYS (line 8B less line 18B)
Capital Financing
Principal, Interest, and Return on Equity

$
$

$
$

$
$

$
$

$
$

$
$

$

$

$

$

$

$

Total Capital Financing (total lines 21B to 24B)

A-15

APPENDIX B EXHIBIT 1
WORKSHEET B - CAPITAL BUDGET
Capital Outlays
New Capital Facilities. Enter the sum of all costs that are associated with purchasing or constructing new facilities for
the water system whose costs involve multiple-year commitments. These items may include the pumping station,
distribution pipes, storage tanks, treatment plant, and other buildings and equipment.
Renewal and Replacement Facilities. Enter the sum of all costs that are associated with purchasing or constructing
renewal or replacement facilities for the water system that involve multiple-year commitments.
Other. Several blank lines are available to enter capital outlays of the system that are not included in the two previous
categories.
Total Capital Outlays. Enter the sum of the capital outlays listed above.

Capital Sources
Loan/Bond Proceeds. Enter the amount of money the water system obtains through borrowing, including bank loans,
the issuing of bonds, etc.
Equity. Enter the amount of contributions that the water system receives in exchange for a right, claim, or interest in the
water system.
Contributions/Connection Fees. Enter the sum of funds that the water system receives from construction assistance
contributions or from the imposition of fees on the extension of services.
Draw from Replacement Reserve. Enter the amount of money that the water system used from its replacement reserve
to finance capital projects.
Other. Several blank lines are available to enter capital sources of the system that are not included in the previous
categories. Include any grant funds that are received.
Total Capital Sources. Enter the sum of the capital sources noted above.
Net Capital. Subtract total capital sources from total capital outlays. Ideally, the net capital of the water system should
equal zero. The goal should be to balance the flows of capital outlays and capital sources. If the net capital figure is
positive the water system has inadequate capital sources to meet its capital outlays. If net capital is negative the water
system has more funds than necessary to finance capital improvements. It is important to note that in a given year net
capital may vary significantly due to the timing of cash flows. For example, the year in which a large bond issue is
made, to pay for a multi-year construction project, capital sources may outweigh capital outlays significantly.

Capital Financing
Principal, Interest, and Return on Equity. Enter the amount that the water system repays annually on all debt and
equity incurred to finance capital projects, including both principal and interest payments.
Other. Several blank lines are available to enter other capital financing of the system that is not included in the previous
category.
Total Capital Financing. Enter the sum of all capital financing of the water system listed above.

A-16

APPENDIX B EXHIBIT 1

WORKSHEET C - RESERVES BUDGET

1C
2C
3C
4C
5C
6C
7C
8C
9C
10C
11C
12C
13C
14C
15C
16C
17C
18C
19C

TOTAL ANNUAL RESERVE INSTALLMENTS (total lines 2C, 6C, 10C, 14C)
TOTAL RUNNING BALANCE (total lines 3C, 7C, 11C, 15C)
TOTAL TARGET BALANCE (total lines 4C, 8C, 12C, 16C)

Current Year

Actual
Budget
Reserve for _______________
Annual Installment
Running Balance
Target Balance
Reserve for _______________
Annual Installment
Running Balance
Target Balance
Reserve for _______________
Annual Installment
Running Balance
Target Balance
Reserve for _______________
Annual Installment
Running Balance
Target Balance

Prior Year

Annual
Budget

$
$
$

A-17

$
$
$

Year 1

Year 2

Year 3

Year 4

Projected Budget

$
$
$

$
$
$

$
$
$

$
$
$

APPENDIX B EXHIBIT 1
WORKSHEET C - RESERVES BUDGET
Reserve for ________________. Lines 1C, 5C, 9C, and 13C are available to enter the reserve accounts that the water
system uses. Examples of reserve accounts include:
·
·
·
·

Operating Cash Reserve;
Replacement/Depreciation Reserve;
Emergency Reserve; and
Debt Service Reserve.

The annual installment to the reserve account should equal the desired balance of the reserve divided by the number of
years before that balance needs to be reached. The desired or target balance should be sufficient to replace depreciated
equipment, address the worst emergency situation, or support the issuance of debt. The amount that is desired or
targeted for future needs should be noted on lines 4C, 8C, 12C, and 16C. Also, denote the current running balance of
each reserve account (on lines 3C, 7C, 11C, and 15C).
Total Annual Reserve Installments. Denote the total amount of money that the water system allocates to all reserve
accounts annually.
Total Running Balance. Denote the total amount of money in all reserve accounts.
Total Target Balance. Denote the total desired or targeted balance of all reserve accounts.

A-18

APPENDIX B EXHIBIT 1

WORKSHEET D – REVENUE ANALYSIS
Prior Year

Actual
Budget

1D

Current Year

Year 1

Year 2

Annual
Budget

Year 3

Year 4

Projected Budget

Revenue Requirements
2D
3D
4D
5D
6D
7D
8D
9D
10D
11D

Total Expenses (line 20A)
Net Capital Outlays (line 19B)
Total Capital Financing (line 25B)
Total Annual Reserve Installments (line17C)
TOTAL REVENUE REQUIREMENT (total lines 2D to 5D)
Number of Connections
(000's) Gallons Sold
Revenue Requirement per Number of Connections (line 6D/line 7D)
Revenue Requirement per (000's) Gallons Sold (line 6D/line 8D)

$
$
$
$
$

$
$
$
$
$

$
$
$
$
$

$
$
$
$
$

$
$
$
$
$

$
$
$
$
$

$
$

$
$

$
$

$
$

$
$

$
$

$
$
$
$

$
$
$
$

$
$
$
$

$
$
$
$

$
$
$
$

$
$
$
$

Revenue Sources
12D
13D
14D
15D
16D
17D
18D
19D

Rate Revenue

TOTAL REVENUE (total lines 12D to 15D)
BUDGET SURPLUS (DEFICIT) (line 16D less line 6D)
Total Revenue per Number of Connections (line 16D/line 7D)
Total Revenue per (000's) Gallons Sold (line 16D/line 8D)

A-19

APPENDIX B EXHIBIT 1
WORKSHEET D - REVENUE ANALYSIS
Revenue Requirements
Enter the value of total expenses, net capital, total capital financing, and total annual reserve installments from the
previous forms as noted.
Total Revenue Requirement. Together the items mentioned above encompass the revenue requirement of the water
system. Enter the total of these items here.
Number of Connections. Enter the number of connections that the water system serves or expects to serve in future
years.
(000’s) Gallons Sold. In thousands, enter the total number of gallons of water the water system sells or expects to sell
annually.
Revenue Requirement per Number of Connections. Divide the total revenue requirement by the number of
connections.
Revenue Requirement per Thousand Gallons Sold. Divide the total revenue requirement by the gallons sold in
thousands.

Current Revenue (NOTE: Future revenues are difficult to predict. Enter revenue values for years 1 to 4 only if the
water system has the capability to accurately forecast these values).
Rate Revenue. Enter the total amount of revenue that the water system collects through the levying of rates on water
usage.
Other. Blank lines are available to enter other sources of revenue. These sources may include, but are not limited to, the
following:
· Bulk Water Rates;
· Fire Protection; and
· Fees and Charges (bad check fees, reconnect fees, meter testing fees, late payment charges).
If the water system has more sources of revenue than available blank lines, group similar revenues together into broader
categories and note these groupings for future reference.
Total Revenue. Enter the sum of all revenue collected by the water system.
Budget Surplus (Deficit). Subtract the water system’s total revenue requirement from its total revenue.
Total Revenue per Number of Connections. Divide the total revenue by the number of connections.
Total Revenue per Thousand Gallons Sold. Divide the total revenue by the gallons sold in thousand

A-20

Omaha Tribe of NE Consent Decree – Appendix C

6-19-2014

Omaha Tribe Consent Decree – Appendix C
Utilities Operating Plan
Asset Management Plan Requirements
Managerial Capacity
1. Provide contact information for personnel responsible for ensuring compliance with federal drinking
water and wastewater regulations.
2. Describe any contracts for management or operations for the drinking water, wastewater or solid
waste management utilities, and indicate how legal, engineering, and other professional services are
provided.
3. Provide a description of the legal basis of the utilities system ownership and authorities.
4. Describe any leases or easements for land, water supply sources or physical facilities used in
operating the drinking water, wastewater and solid waste management utilities.
5. Describe the qualifications of the managers of the drinking water, wastewater and solid waste
management utilities.
6. Describe the training plan to ensure managers and operators are current with regulatory
requirements for managing and operating the drinking water and wastewater utilities.
7. Provide the Emergency Management Plan for the drinking water, wastewater and solid waste
management utilities.
8. Describe the customer service policies, including processes for addressing customer complaints.
Describe customer rights and responsibilities.
9. Disclose any plans to change ownership or operations of the drinking water, wastewater or solid
waste management utilities.

Management and Administration
1. Describe the organization and control structure for personnel responsible for management and
operations of the drinking water, wastewater and solid waste management utilities. Establish the
limits of authority and specific functional areas for key personnel. Indicate who has authority for
scheduling and assigning work.
2. For the drinking water and wastewater utilities, describe rules for system modifications, standard
construction specifications and new hook ups.
3. For the drinking water utility, describe cross connection control and backflow prevention processes.

Page 1 of 2

Omaha Tribe of NE Consent Decree – Appendix C

6-19-2014

4. For the drinking water and wastewater utilities, describe processes to monitor and assure regulatory
compliance (including routine sampling and reporting), for maintaining compliance records, and
actions in the event a violation is incurred.
5. Describe provisions for emergency water supplies in the event of a system failure or inadequate
supply.
6. Describe operational provisions in the event of a spill or contamination of the water supply by
hazardous or toxic substances.
7. Describe the chain of command protocol, including communication provisions with EPA, customers,
and the media, in the event of an emergency impacting the drinking water or wastewater utilities.
8. Describe the operational safety program, including routine and emergency provisions, implemented
by the drinking water, wastewater and solid waste management utilities.
9. Describe the process for scheduling routine preventive maintenance and for assuring adequate
inventory of essential spare parts for the drinking water, wastewater and solid waste management
utilities.
10. Describe relationships or agreements with vendors and suppliers to ensure prompt utilities
maintenance and equipment support.
11. Describe the record keeping process for maintenance activities for the drinking water, wastewater
and solid waste management utilities.

Page 2 of 2

Omaha Tribe of NE Consent Decree – Appendix D

6-19-2014

Omaha Tribe Consent Decree - Appendix D
Quarterly Report Contents
Paragraph 39 of the Consent Decree requires quarterly reporting of Defendants’ progress in
implementing the Injunctive Relief requirements outlined in Section V of the CD. The following
information, at a minimum, must be reported for each element of the Injunctive Relief:
1. General – The quarterly report must specifically identify any Injunctive Relief requirements or
elements for which Defendants are non-compliant or delinquent. Actions Defendants are planning
to take to rectify any such areas of non-compliance should also be included.
2. Paragraph 18 – Report the open and closing balance of the Reserve Account and all transactions on
the account processed during the quarter.
3. Paragraph 19 – Provide the names and proof of licensure status of all drinking water and
wastewater operators employed during the quarter. Provide certification for all training completed
by the utility director chairman during the quarter.
4. Paragraph 20 – Provide certification for all training completed by the OTUC Chairman during the
quarter.
5. Paragraph 21 – Provide a report summarizing any changes in utility staff personnel during the
quarter. Provide a line item summary of all revenue and expenses associated with the utilities
operating budget for the quarter.
6. Paragraph 22 – Describe the status of the utilities operating budget each quarter.
7. Paragraph 23 – The Customer Database is to be updated annually for three years from the effective
date of the Consent Decree, and need not be addressed in the regular quarterly reports.
8. Paragraph 24 – Provide an inventory or spreadsheet of all documents included in the Document
Management System, highlighting any additions to the system that were made during the quarter.
9. Paragraph 25 – Provide copies of all logs, records, or other information that is to be maintained as
specified in the Operations and Maintenance Plans for each of the utilities. Such records shall be
organized according to the utility system.
10. Paragraph 26 – Provide invoices for all waste disposed from the Mother Earth facility, an estimate of
the remaining waste volume, and dated photographs illustrating the status of the facility grounds.
Once all waste has been removed, report the nature and quantity of any wastes that may have been
disposed at the facility, accompanied by photographic documentation.
11. Paragraph 27 – Provide a description of the status of the preparation or implementation of the
Sampling Analysis Plan, as appropriate. After the Sampling and Analysis Plan has been
implemented, provide a description of the status of the preparation or implementation of the
Remediation Plan.

Page 1 of 2

Omaha Tribe of NE Consent Decree – Appendix D

6-19-2014

12. Paragraph 28 – Provide copies of any solid waste ordinances enacted during the quarter, and a
summary of all violations or citations issued related to solid waste ordinances (redact personal info)
during the quarter.
13. Paragraph 29 – Provide a reference to reporting completed and submitted as required by the NPDES
permit. No additional reporting is required for this paragraph.
14. Paragraph 30 – Provide a report describing the construction and operational status of the new
wastewater lift station and backup generator.
15. Paragraph 31 – Provide a reference to reporting completed and submitted as required by the NPDES
permit. No additional reporting is required for this paragraph.
16. Paragraph 32 – Information required by this paragraph may be included with the summary as
reported for paragraph 25.
17. Paragraph 33 – Provide a report summarizing all monitoring, reporting, and public notification
conducted under the SDWA during the quarter.
18. Paragraph 34 – Provide a copy of any revised or updated drinking water system distribution maps if
any were completed during the quarter.
19. Paragraph 35 – Provide a report describing the status of any drinking water meters installed during
the quarter. Include the location of any meters installed, and a summary of the percent completion
of the entire meter installation project required by this paragraph. Include this element in the
quarterly reports until all meters are installed.
20. Paragraph 36 – Provide a summary of any pressure loss events or significant line breaks that
occurred during the quarter. Include the date the event was initially discovered, the locations in the
system that were impacted, and the date the event was deemed closed by the EPA.
21. Paragraph 37 – Provide a report describing the status of each of the installations or inspections as
required in this paragraph until each element is completed.
22. Paragraph 38 – Provide a summary of all CD-required Deliverables submitted during the quarter.

Page 2 of 2

Omaha Tribe of NE Consent Decree – Appendix E

6-19-2014

Omaha Tribe Consent Decree – Appendix E
Operating Contractor General Requirements

General Contractor Qualifications
1. Contractor shall possess relevant experience in operating, managing, and maintaining Public Water
Systems similar to (or more complex than) the Macy Public Water System (“Macy PWS”) on a
contractual basis, and provide documentation supporting such experience and activities.
2. Contractor shall demonstrate successful business standing by providing:
• Copies of business entity filing(s) with the state
• A description of the company, including its services, history, corporate headquarters and
regional office locations, company ownership, service areas, and number of employees
• A summary of the employee skill sets or employee profiles
• Recent financial statements
• A summary of the current contracts in place
• For the 5 most recent contracts, a summary of the general scope of services provided
General Scope of Services
Operate, manage, and maintain all functions associated with the Macy PWS on a 24 hr / 7 day basis to
comply with Safe Drinking Water Act (SDWA) requirements and meet needs of the Macy community:
•
•
•
•
•
•
•
•

•

Provide appropriately licensed and qualified operating and managerial personnel
Provide necessary equipment, supplies and services associated with routine Macy PWS
operations and maintenance (O&M)
Complete SDWA-required monitoring and reporting
Perform necessary routine maintenance and preventive maintenance on system and
components
Complete operating and maintenance records/logs
Regularly inspect major system components and advise Defendant of pending major repair and
capital improvement requirements
Distinguish scope of “routine” maintenance/preventive maintenance and “major” maintenance
items for contractual purposes
Perform billing and collection services for Macy PWS based on Defendant’s prescribed rate
structure; issue notice of delinquent payments and perform service
disconnections/reconnections per Defendant policies
Assist Defendant in communicating with public and EPA concerning required SDWA reporting,
including major pressure losses requiring the need for boil orders and other drinking water
issues appropriate for public dissemination

Page 1 of 1

Omaha Tribe of NE Consent Decree – Appendix F

6-19-2014

Omaha Tribe Consent Decree – Appendix F
Criteria to Demonstrate Technical, Managerial, and Financial Capacity of the Drinking Water
System

If Defendants have outsourced operation, maintenance, and management of the Drinking
Water System pursuant to Section VI (Non-Compliance With Consent Decree) of the Consent
Decree, and, in accordance with Paragraph 44, Defendants elect to terminate the outsourcing
agreement, Defendants shall notify EPA in writing. The notification shall include supporting
documentation sufficient to determine whether Defendants meet the criteria outlined in this
Appendix. EPA shall make the final determination regarding whether Defendants have
demonstrated that they have adequate technical, managerial, and financial capacity to resume
operation, maintenance, and management of the Drinking Water System. EPA shall use the
following criteria to make its determination:

Technical Criteria
1. Currently Defendants have employed, at a minimum, one Grade III and one Grade IV
operator, licensed by the state of Nebraska and one additional staff member, to operate the
Drinking Water System.
2. Defendants have established an operator training program to ensure drinking water
operators satisfy Nebraska’s continuing education requirements. Expenses for operator
training are included in the budget approved by the Council for the Drinking Water System.
3. Current distribution system maps are available for the Drinking Water System.
4. Defendants have developed, and are prepared to implement the following for the Drinking
Water System:
a.
b.
c.
d.

EPA-approved Operation & Maintenance (O & M) Plan
Cross-connection control program
Emergency Operations/Response Plan
Line break repair Standard Operating Procedures (SOP)

5. Adequate backup equipment, facilities, and power are available to handle emergency
situations for the Drinking Water System.
6. Drinking Water System water storage facilities have been inspected for structural and
sanitary defects within the past 3 years.
7. Defendants have established defined standards for system modifications, new connections,
and main extensions for the Drinking Water System.
Page 1 of 2

Omaha Tribe of NE Consent Decree – Appendix F

6-19-2014

Managerial Criteria
Defendants have developed, and are prepared to implement the following for the Drinking
Water System:
a. A defined managerial chain of command (including organizational chart)
b. Utility operational by-laws and/or operating procedures
c. Written job descriptions, including performance standards, and personnel policies for all
utility operating staff
d. Monthly review of revenue and expenses by utility management
e. A records management and retention program that addresses all regulatory records
requirements, O&M SOPs and records, personnel records, and financial records.
f. A customer complaint and resolution process.

Financial Criteria
1. Defendants have developed, and are prepared to implement the following for all utilities
(drinking water, wastewater, and solid waste):
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.

Annual budget for all utilities operations
Regular financial planning and review processes
Monthly billing for utilities services
Independent cost accounting for each utility (drinking water, wastewater, solid waste)
Defined processes and controls for purchasing and expenditures
Defined processes and controls for hiring contractors
Defined processes and controls for managing revenue
A defined rate structure with a defined process for regular review of established rates
Defined policies for collections and addressing late payments
Defined processes for regular auditing of financial records and practices
Defined processes for management approval of the utility budget

2. The utility rate revenue plus other designated revenue sources are sufficient to cover
budget expenses.
3. The utility budget includes adequate funding to address facility depreciation, reserve funds,
and capital improvements

Page 2 of 2

Omaha Tribe of NE Consent Decree Appendix G

Omaha Tribe of NE Consent Decree Appendix G

Omaha Tribe of NE Consent Decree Appendix G