### MEMORANDUM OFAGREEMENT BETWEEN THE GILARIVERINDIAN COMMUNITY 

### AND THEU.S. ENVIRONMENTALPROTECTIONAGENCY REGARDING CRIMINALENFORCEMENT OFTHEAIRQUALITYMANAGEMENT PLAN PURSUANTTO THE CLEANAIRACT and40 C.F.R. PART49 This Memorandum ofAgreement (MOA) between the Gila River Indian Community and the 

### U.s. Environmental Protection Agency (EPA) is entered into onthis;ZMay of

### 0cA-1b2609. WHEREAS, the Gila River Indian Community (Community) is a duly sovereign, federally recognized Tribal entity that is governed by the Gila River Indian Community Council; and WHEREAS, the Community has delegated to the Gila River Indian Community Department of Environmental Quality (GRIC DEQ) the authority to regulate the reservation environment; and WHEREAS, GRIC DEQ has exercised this grant ofauthority and actively regulates the quality ofthe Tribe's air, water and environmental health; and WHEREAS, on or about February 12, 1998, EPA promulgated a final rule at 63 F.R. 7271 implementing the mandate ofthe Clean Air Act (CAA) to promulgate regulations specifying those provisions ofthe Act for which it is appropriate to treat Indian Tribes in the samemanner as States; and WHEREAS, Subpart A ofpart 49 ofTitle 40 ofthe Code ofFederal Regulations sets forth the CAA provisions for which it is appropriate to treat Indian Tribes in the same manner as States, including primary enforcement responsibility for the CAA; and WHEREAS, GRIC DEQ, acting on behalf of the Community, has applied to EPA for an eligibility detennination under the provisions of40 CFR Part 49 for the purpose ofdeveloping and implementing a federally enforceable (i) Tribal Implementation Plan (TIP) under Section 110 ofthe CAA; (ii) 

### program to implement the New Source Performance Standards (NSPS) and the National Emissions Standards for Hazardous Air Pollutants (NESHAP) under Sections III and 112 ofthe CAA, respectively; and (iii) operating permit program under Title V ofthe CAA (the foregoing programs are referred to collectively herein as the Air Quality Management Plan orAQMP); and WHEREAS, 40 C.F.R. § 49.7(a)(6) provides that where applicable CAA or implementing regulatory requirements mandate criminal enforcement authority, an application

1submitted by an Indian tribe may be approved ifit meets the requirements of40 C.F.R. 

### § 49.8; and WHEREAS, 40 C.F.R. 

### §49.8 provides that, to the extentthat an Indiantribe is precluded from asserting criminal enforcementauthority, thetribe and the EPA Region shall enter into a Memorandum of Agreement providing for the United States to exercise primary criminal enforcement responsibility and for the tribe to provide potential investigative leads to EPAorany otherappropriate Federal agencies; and WHEREAS, Section 113(c) of the CAA provides that any person who violates one of the provisions enumerated therein shall, upon conviction, be punished by a fine pursuantto Title 18 which sets forth federal crimes and criminal procedure; and WHEREAS, subsections (I), (2) and (5) of Section I13(c) provide that any person who knowingly violates one of the provisions enumerated therein shall, upon conviction, be subject to imprisonment for a term not to exceed, based upon the conviction, five years, two years, or fifteen years; and WHEREAS, 18 U.S.C. 

### § 3571 provides that the maximum fme which may be imposed upon an individual who has been found guilty ofa felony, ora misdemeanorthatresults in death, shall be $250,000 (two hundred and fifty thousand dollars); and WHEREAS, the Indian Civil Rights Act of 1968, 25 U.S.c. 

### § 1302, provides that tribal governments may not impose sentences that exceed one year's imprisonment and/or a fine notto exceed $5,000 (five thousand dollars); and WHEREAS, the maximum criminal penalties provided for under the CAA may exceed the criminal penalties which tribal governments may impose pursuant to the Indian Civil Rights Actof 1968; and WHEREAS, the United States Supreme Court held in Oliphant v. Suquamish, 435 U.s. 191 (1978), that Indiantribes lack criminaljurisdictionovernon-Indians; and WHEREAS, EPA seeks to assure that criminal violations are enforceable against all violators, includingnon-Indians; and WHEREAS, EPA's Criminal Investigation Division (CID) seeks to investigate allegations of willful violations as early as possible in order to ensure that the appropriate penalties may bepursued; and WHEREAS, the Community and EPA previously entered into a Memorandum ofAgreement addressing the TIP only and would now like to rescind that agreement and enter into this MOA to address all ofthe AQMP programs for which the Community seeks implementation and enforcement authorityunderthe CAA; and

2WHEREAS, by entering into this MOA, the parties do not intend to limit or otherwise affect the Tribe'sjurisdiction; and WHEREAS, pursuant to 40 CFR § 49.8, this Memorandum ofAgreement provides the means by which GRIC DEQ shall refer potential criminal violations ofthe CAAprogram to CID; and WHEREAS, this MOA satisfiesthe requirements of40 C.F.R. § §49.7 and 49.8: NOWTHEREFORE,the parties agree as follows: ARTICLE 1: LIASONSAND COMMUNICATIONS. A. Designation ofPersonnel. 1. 

## cmRegion 9 Liaison. The Special-Agent-in-Charge (SAC) for Region 9 will designate a CID agentto fulfill the roles and responsibilities ofthis MOA. 2. CommunityCriminalEnforcementLiaison. The Communitywill designate a Community EnforcementLiaisonto fulfill the roles and responsibilities ofthis MOA. B. Changesin Personnel. It shall be the obligation ofthe SAC and the Communityto notify one another ofchanges in the personnel designated under this Agreement. In addition to any other form of notification provided, written notification should be provided within five business days of a change in personnel. C. ConfidentialityofCommunications. All communication between the Community and EPA or representatives ofthe United States concerning investigations or enforcement matters covered by this Agreement (hereinafter, Covered Information) will be treated as confidential and enforcementsensitive information not subject to disclosure under the Federal Freedom ofInformation Act to the extent permitted by law. The parties will take steps to ensure the confidentiality ofall Covered Information and to the extent permitted by law, shall not disclose Covered Information to anyone outside the Federal or Community governments without the consent ofboth parties except as part ofan enforcement proceeding. Ifthe Community is unable to protect Covered Information from disclosure, the Community will notify EPA before EPA shares any Covered Information with the Community. To the extent permitted by Community law, the Community will, in consultation with EPA, return ordestroyanyCovered Informationthat it is unable to protect from disclosure.

3ARTICLE2: REFERRAL OFPOTENTIALCRIMINALVIOLATIONS. A. Potential CriminalViolations. The Community shall contact the CID Region 9 Liaison in the manner described in Article 3 whenever it has reason to believe that a suspected violation ofthe AQMP may have been committed knowingly or where a suspected negligent violation has resulted in death or serious bodily injury. B. Definitions. 1. AirQualityManagementPlan. For purposes ofthis MOA, the term Air Quality Management Plan or AQMP shall refer to all requirements ofthe AQMP that EPA has approved as part ofthe Community's application for CAA implementation and enforcement authority, including, but not limited to (i) the Tribal Implementation Planunder Section 110 ofthe CAA (TIP); (ii) the program to implement the New Source Performance Standards (NSPS) and the National Emissions Standards for Hazardous Air Pollutants (NESHAP) under Sections 111 and 112 ofthe CAA, respectively; and (iii) the operating permit program under Title V ofthe CAA. 2. Community. The term "Community" means the Gila River Indian Community, including the Gila River Indian Community Department of Environmental Quality and any other Community governmental entities to which the Gila River Indian Community has delegated regulatory and/or law enforcement authority. ARTICLE3: REFERRAL PROCESS. A. EmergencyNotification RegardingSuspected CriminalViolations. Within 24 hours from the time that an emergency (as described below) is discovered, the Community shall contactEPA as follows: 1. ImminentThreattoHuman Health ortheEnvironment. Ifa suspected violation ofthe AQMP potentially constitutes an imminent threat to human health orthe environment, the Community shall contact the National Response Center at 1(800) 424-8802. 2. ThreatofFlightorEvidentiaryPeril. If a suspect or witness is likely to become unavailable by virtue of flight or other circumstance, or ifdelay may degrade or otherwise make unavailable or unreliable

4evidence of a violation of the AQMP suspected to be subject to this MOA, the Community shall immediately notify by telephonethe CID Region 9 Liaison. 

### B. Initial Notification ofSuspected Criminal Violations that Do Not Pose Emergency Circumstances. Where the Community has reason to suspect a knowing violation may have occurred, or that a negligent violation has resulted in death or serious bodily injury, and the circumstances described in paragraph A above are not present, as soon as practicable, the Community shall notifyby telephone the

## crn Region 9 Liaison. C. 

### SupplementaryInformation. Within 5 business days of the discovery of any suspected knowing violation or any violation resulting in death or serious bodily injury (whether notified pursuant to paragraph A or B above), the Community shall transmit by letter or in other writing any supplementary information that the Community may have pertaining to the suspected violation. Such information may include the following: 1. A detailed description, including date, time and location, of the events and circumstances that constitute the suspected violation, together with the identity of (and contact information for) any suspects and/orwitnesses; 2. The statutory and/orregulatory provisions believed to have been violated; 3. The compliance history ofsuspected individual orfacility; and 4. A description ofany enforcement actions the Communityhas taken orintendsto take. 

### D. Additional assistance. After providing the initial investigative lead, the Community shall, when requested, continue to assist 

## crn in collecting additional evidence to support the investigation, and will make available inspectors or other employees ofthe Community who witnessed the suspected violations or who are otheIWise in the chain ofcustody for evidence ofthe violation. 

### ARTICLE4: MISCELLANEOUS PROVISIONS. A. Resen'ationofRights. This MOA is intended solely for the purpose of facilitating intergovernmental cooperation between the parties. This MOA does not change or amend any preexisting agreements between the parties. Further, nothing in this MOA affects or shall be deemed to affect the jurisdiction or governmental authority of the Community or EPA. This

5Agreement creates no rights in third parties, including, but not limited to, the right of judicialreview. B. Modification oftheAgreement. This MOA maybe modified onlybywritten instrument and signatureofall the parties. C. SupercedingAgreement. This MOA supersedes the Memorandum ofAgreement between the Gila River Indian Community and the 

## u.s. Environmental Protection Agency Regarding Criminal Enforcement ofthe Tribal Implementation Plan Pursuant to the Clean Air Act and 40 C.F.R. Part49 executed on November 10, 2008. D. EffectiveDate. This Agreement shall become effective onthe date it is signed byall the parties. E. Ongoing Communications. Consistent with applicable law and policy and Article 1, paragraph C, and subject to prosecutorial review and consent, 

## cm will develop, in consultation with the Community, a case-specific process for ongoing communication with respect to each matter that has been referred under Articles 2 and 3. This process may be reduced to writing. Either party may waive the requirement for a formal communications process either verbally or in writing atany time. F. Appropriations. All commitments made inthis MOA are subject to the availability ofappropriated funds and each party's budget priorities. Nothing in this MOA, in and ofitself, obligates EPA to expend appropriations or to enter into any contract, assistance agreement, or interagency agreement, or to incur a financial obligation to the Community. The Community agrees not to submit a claim for compensation for services rendered to EPA or another federal agency for activities it undertakes in carrying out this MOA unless such a claim is an eligible and allowable cost under a separate contract or assistance agreement that has been entered into between EPA and the Community in accordance with applicable laws, regulations and procedures. F. Authority. The authority to enter into this MOA is set forth in 49 C.F.R. 

### § §49.7 and 49.8. These regulations require, in relevant part, that EPA and the Community enter into a MOA which reflects a system in which the Tribe will refer criminal violations to EPA in an appropriate and timely manner. This MOA satisfies the foregoing conditions for EPA approval ofthe Community'sAQMP.

6IN WITNESS WHEREOF, this Memorandum ofAgreement is signed byrepresentatives for the parties.



### Date:W

# /&>/01**Date:~ /~-**  William Rhodes, Governor GilaRiverIndian Community

Date: 

## (O,..

# 2JJ..,**O~** Deb r Jordan AirDivision Director Region IX, U.S. Environmental Protection Agency

Date:

# Ira

-J/

- /) 

# '1 SpecialAgent in Charge CID San Francisco Area Office, Region IX U.S. Environmental Protection Agency

7