MEMORANDUM OF AGREEMENT
 

BETWEEN
 

THE GILA RIVER INDIAN COMMUNITY
 

AND
 

THE U.S. ENVIRONMENTAL PROTECTION AGENCY
 

REGARDING
 

CRIMINAL ENFORCEMENT OF THE AIR QUALITY MANAGEMENT PLAN
 

PURSUANT TO
 

THE CLEAN AIR ACT and 40 C.F.R. PART 49
 

This Memorandum of Agreement (MOA) between the Gila River Indian Community and the 

U.s. Environmental Protection Agency (EPA) is entered into on this;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 of authority and actively regulates the quality 

of the 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 of the Clean Air Act (CAA) to promulgate regulations 

specifying those provisions of the Act for which it is appropriate to treat Indian 

Tribes in the same manner as States; and 

WHEREAS,	 Subpart A of part 49 of Title 40 of the Code of Federal 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 of 40 CFR Part 49 for the purpose 

of developing and implementing a federally enforceable (i) Tribal Implementation 

Plan (TIP) under Section 110 of the 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 of the CAA, 

respectively; and (iii) operating permit program under Title V of the CAA (the 

foregoing programs are referred to collectively herein as the Air Quality 

Management Plan or AQMP); 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 

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submitted by an Indian tribe may be approved if it meets the requirements of 40 

C.F.R. § 49.8; and 

WHEREAS,	 40 C.F.R. § 49.8 provides that, to the extent that an Indian tribe is precluded from 

asserting criminal enforcement authority, the tribe 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 EPA or any other appropriate 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 

pursuant to 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 of a felony, or a misdemeanor that results 

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 not to 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 Act of 1968; and 

WHEREAS,	 the United States Supreme Court held in Oliphant v. Suquamish, 435 U.s. 191 

(1978), that Indian tribes lack criminal jurisdiction over non-Indians; and 

WHEREAS,	 EPA seeks to assure that criminal violations are enforceable against all violators, 

including non-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 be pursued; and 

WHEREAS,	 the Community and EPA previously entered into a Memorandum of Agreement 

addressing the TIP only and would now like to rescind that agreement and enter 

into this MOA to address all of the AQMP programs for which the Community 

seeks implementation and enforcement authority under the CAA; and 

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WHEREAS,	 by entering into this MOA, the parties do not intend to limit or otherwise affect 

the Tribe's jurisdiction; and 

WHEREAS,	 pursuant to 40 CFR § 49.8, this Memorandum of Agreement provides the means 

by which GRIC DEQ shall refer potential criminal violations ofthe CAA program 

to CID; and 

WHEREAS,	 this MOA satisfies the requirements of 40 C.F.R. § § 49.7 and 49.8: 

NOW THEREFORE, the parties agree as follows: 

ARTICLE 1: LIASONS AND COMMUNICATIONS. 

A. Designation of Personnel. 

1. cm Region 9 Liaison. 

The Special-Agent-in-Charge (SAC) for Region 9 will designate a CID agent to fulfill the 

roles and responsibilities ofthis MOA. 

2. Community Criminal Enforcement Liaison. 

The Community will designate a Community Enforcement Liaison to fulfill the roles and 

responsibilities ofthis MOA. 

B. Changes in Personnel. 

It shall be the obligation ofthe SAC and the Community to 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. Confidentiality of Communications. 

All communication between the Community and EPA or representatives of the 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 of Information 

Act to the extent permitted by law. The parties will take steps to ensure the 

confidentiality of all 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 of both parties except as part of an enforcement proceeding. If the 

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 or destroy any Covered Information that it is unable to protect from disclosure. 

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ARTICLE 2: REFERRAL OF POTENTIAL CRIMINAL VIOLATIONS. 

A. Potential Criminal Violations. 

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 of the AQMP may 

have been committed knowingly or where a suspected negligent violation has resulted in 

death or serious bodily injury. 

B. Definitions. 

1. Air Quality Management Plan. 

For purposes of this MOA, the term Air Quality Management Plan or AQMP shall refer 

to all requirements of the AQMP that EPA has approved as part of the Community's 

application for CAA implementation and enforcement authority, including, but not 

limited to (i) the Tribal Implementation Plan under Section 110 of the 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. 

ARTICLE 3: REFERRAL PROCESS. 

A. Emergency Notification Regarding Suspected Criminal Violations. 

Within 24 hours from the time that an emergency (as described below) is discovered, the 

Community shall contact EPA as follows: 

1. Imminent Threat to Human Health or the Environment. 

If a suspected violation ofthe AQMP potentially constitutes an imminent threat to human 

health or the environment, the Community shall contact the National Response Center at 

1 (800) 424-8802. 

2. Threat of Flight or Evidentiary Peril. 

If a suspect or witness is likely to become unavailable by virtue of flight or other 

circumstance, or if delay may degrade or otherwise make unavailable or unreliable 

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evidence of a violation of the AQMP suspected to be subject to this MOA, the 

Community shall immediately notify by telephone the CID Region 9 Liaison. 

B.	 Initial Notification of Suspected 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 notify by telephone the crn Region 9 Liaison. 

C.	 Supplementary Information. 

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/or witnesses; 

2. The statutory and/or regulatory provisions believed to have been violated; 

3. The compliance history of suspected individual or facility; and 

4. A description of any enforcement actions the Community has taken or intends to 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 of the Community who witnessed the 

suspected violations or who are otheIWise in the chain of custody for evidence of the 

violation. 

ARTICLE 4: MISCELLANEOUS PROVISIONS. 

A.	 Resen'ation of Rights. 

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 

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Agreement creates no rights in third parties, including, but not limited to, the right of 

judicial review. 

B. Modification of the Agreement. 

This MOA may be modified only by written instrument and signature of all the parties. 

C. Superceding Agreement. 

This MOA supersedes the Memorandum of Agreement between the Gila River Indian 

Community and the u.s. Environmental Protection Agency Regarding Criminal 

Enforcement of the Tribal Implementation Plan Pursuant to the Clean Air Act and 40 

C.F.R. Part 49 executed on November 10, 2008. 

D. Effective Date. 

This Agreement shall become effective on the date it is signed by all 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 at any time. 

F. Appropriations. 

All commitments made in this MOA are subject to the availability of appropriated funds 

and each party's budget priorities. Nothing in this MOA, in and of itself, 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 of the Community's AQMP. 

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IN WITNESS WHEREOF, this Memorandum ofAgreement is signed by representatives for the 

parties. 

Date:W /&>/01 

Date:~

William 

/~- Rhodes, Governor 

Gila River Indian Community 

Date: (O,.. 2JJ .., O~ Deb r Jordan 

Air Division Director 

Region IX, U.S. Environmental Protection Agency 

Date: Ira -J/- /) '1 

Special Agent in Charge 

CID San Francisco Area Office, Region IX 

U.S. Environmental Protection Agency 

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