Received

MEMORANDUM

To: Claudia Vaupel, Region X, EPA

NOV 18 2013

Office Of Air, Waste

And Toxic:

From: Scott Andrews, Environmental Management Coordinator

Date: Nov/13/13

Re: Corrections and amended documents for the Swinomish - Tribal Implementation

Plan for Open Burning.

I am hopeful that the following enclosures will complete any needed changes and

corrections to the Swinomish Tribal Implementation Plan.

1) TIP Part I - Was amended by Resolution of the Swinomish Tribal Senate.

Amendments addressed concerns noted by EPA, particularly the "Conflict of Interest"

language.

2) TIP Part I with track changes for your convenience. (not actually part of the

submission, merely supplemental information).

3) Copy of the Senate Resolution adopting the amendments to the TIP (Nov/05/13).

4) Copy of TIP Part II, Swinomish Title 19 Chapter 2 - Clean Air Act. Legal

Department / code reviser corrected a number of minor typographical errors identified by

EPA. These did not require any further formal review or adoption.

5) Copy of Subchapter IX of the Swinomish Shorelines and Sensitive Areas code

which contains appeals language (STC 19-04.560 through 19-04.600) cited in TIP.

6) Copy of Memo listing documents in support of TIP with typo correction to "c"

Legal Authority under Swinomish Constitution Article VI.

7) Copy of Resources memo with typo corrected re: "personnel."

8) The original TIP submittal checklist 46 identified the wrong letter. Attached here

is the complete 2116/10 TAS eligibility letter.

r' '3

"-- ALAyRy
Swinomish TIP Submittal Checklist 

Administrative requirements 

1 A formal letter from the Swinomish Tribal Chairman requesting approval of the TIP 

See Swinomish Tribal Chairman letter 3/12/2012 

2 A description of the exterior boundaries of the Swinomish Reservation where the TIP 

applies. 

See Scott Andrews memorandum 5/22/2012 and letter to Diana Boquist 1/6/2009 

3 Evidence that the Swinomish Tribe has adopted the TIP into Tribal code 

See attached Swinomish Tribal Resolution 2012-03-047 and Ordinance NO 307 

4 Documentation that the Swinomish Tribal government has the legal authority under 

Tribal law to adopt and enforce the TIP 

See copy of the Constitution and by-laws of the Swinomish Indian Tribal 

Community 

5 A demonstration that the Swinomish Indian Tribal Community has sufficient personnel 

to and resources to develop, implement and enforce TIP elements for which the Tribe 

will have enforcement responsibility. 

See Scott Andrews Memorandum 5/22/2012 

6 Identification of any previous determinations of eligibility by EPA treatment as a state 

See Michelle L. Pirzadeh's letter received on 1/6/2010 and Diana Boquist's letter 

116/2009 

7 Evidence that the Tribe followed all the procedural requirements of the Tribe's law in 

conducting and completing the TIP. 

See signed Swinomish Tribal Resolution 2012-03-047 and Ordinance NO 307 and 

Swinomish Constitution 

8 A copy of public notices published in newspaper with general circulation 

See copies of two legal notices in the LaConner Weekly News 

1 
9 Certification that a public hearing was held after the appropriate comment period. 

See Scott Andrews 3/12/2012letter to EPA and copies of the 12/15/2011 and 

1/26/2012 Swinomish Indian Tribal Planning Commission meeting minutes. 

10 Any public comments and Swinomish responses. 

See memo by Scott Andrews dated 3/14/2012. 

11 Identification of previous determinations of eligibility for treatment as a state 

Same as# 6 

Substantive requirements 

1 A copy of actual regulations that contain emission limits and other control 

measures.(including economic incentives such as fees, marketable permits, and auctions 

of emission rights). The submittal shall be a copy of the official regulation signed, 

stamped, dated by the appropriate official indicating that it is fully enforceable. The 

effective date of the regulation shall be indicated on the document itself. 

Not applicable 

2 A copy of permit requirements 

See proposed TIP 19-02.140 Standard Permit Conditions and 19-02.150 

Additional Permit Conditions 

3 A copy of the enforcement measures 

See TIP 19-02.190 Enforcement 

4 A copy of the Swinomish air quality monitoring network. Specifically demonstrate that 

the Swinomish Air Quality Program has the authority to monitor air quality , compile and 

analyze the data and that it is doing so consistent with EPA guidance. 

See enclosed copy of recently updated and signed Quality Assurance Project Plan 

for ambient monitoring on the Swinomish Reservation. 

Supportive materials 

1 Air Quality Data Summaries 

See enclosed 2010 Oxidant Analysis from Two Sites on the Swinomish 

Reservation and Swinomish Air Quality Program 2011 Annual Data Summary 

2 Current and projected emission inventory 

2 

.. 
See enclosed 2077 Emission Inventory 

3 Dispersion modeling analysis 

Back trajectory modeling analysis included in Air Quality Data Summaries 

3 
MEMORANDUM

To: Environmental Protection Agency

From: Scott Andrews, Environmental Management Coordinator

Date: May 22, 2012

Re: List of documents in support of Tribal Implementation Plan for Open Burning,

showing meeting criteria of 40 CFR part 51, Appx V, section 2. (see also TIP Checklist).

2.1

a. Formal letter from Tribal Chairman Cladoosby requesting EPA approval

b. Evidence plan adopted - copies of signed Tribal Senate Resolutions approving

TIP and Amended Tribal Ordinance.

c. Legal Authority to adopt and implement - Copy of Swinomish Constitution. (see

Article VI, Section 1, (k) and (1).

d. Copy of TIP and Ordinance as amended.

e. Evidence Tribal procedural requirements followed. Only legal requirements for

adoption are adoption by the Tribal Senate according to the Senate Rules (see

Tribal Constitution) and signed resolutions approving TIP and Ordinance. While

not a legal requirement, the typical process for such resolutions and ordinances is

via review by the appropriate committee of the Senate. In this case the Planning

Commission held a hearing for purposes of Tribal and Federal process. See copy

of Hearing minutes and Commission recommendation to the Senate for approval.

f. Public Notice of Hearing. Copies of both notices (first Meeting had no qurom, so

following informational meeting, Hearing date rescheduled with new notice.

g. Certification Hearing was held in accordance with 40 CFR 51.102. Certification

signed by Environmental Management Coordinator.

h. No public comments were received either in writing or via verbal testimony at the

public hearing (see memo).

Additional documents not specifically required by 40 CFR 51, Appx V, section 2

but on the EPA provided checklist.

- Copy of the Treatment as a State (TAS)

- Memo with TAS section sited for "Administrative Requirements" #2

(Reservation Boundary), and

- Memo citing sections in TAS and TIP for #5 regarding sufficient

personnel and resources.
THE SWINOMISH INDIAN TRIBAL COMMUNITY

SWINOMISH INDIAN RESERVATION

Received

NOV 182013

Office Of Air, Waste

And Toxics

RESOLUTION NO. 2013-11- a

A Resolution Approving the Amended Tribal Implementation Plan for Open Burning on

the Swinomish Reservation

WHEREAS, the Swinomish Indian Tribal Community (the "Tribe") is a federally

recognized Indian Tribe organized pursuant to Section 16 of the Indian Reorganization Act of

1934 (25 U.S.C. § 476); and

WHEREAS, the Tribe is organized under a constitution and bylaws originally ratified by

the Tribe on November 16, 1935, and approved by the Secretary of the Interior on January 27,

1936, and as most recently amended and ratified by the Tribe on September 7, 1985 and

approved by the Secretary of the Interior on October 22, 1985; and

WHEREAS, Swinomish Indian Senate (the "Senate") is the duly enacted governing body

of the Swinomish Indian Tribal Community and exercises governmental authority over all lands

and waters within the Swinomish Indian Reservation; and

WHEREAS, the Tribe has been approved for treatment as a state for the purpose of

administering a portions of the Clean Air Act regarding open burning within the exterior

boundaries of the reservation by the United States Environmental Protection Agency; and

WHEREAS, Implementation of these delegated portions of the federal Clean Air Act

under "treatment as a state" require adoption of an approved Tribal Implementation Plan; and

WHEREAS, EPA approval requires certain amendments to the previously submitted

TIP; and

WHEREAS, The Planning Commission finds that the proposed amendments to the

Tribal Implementation Plan will improve regulation of open burning and enforcement of burn

bans within the exterior boundaries of the Reservation regardless of land ownership status; and

WHEREAS, The Planning Commission recommends approval of the Tribal

Implementation Plan as proposed for amendment; and

Resolution No. 2013-11-•

Page 1 of 2

Update: 10-30-2013
WHEREAS, the Tribal Senate is authorized to take this action pursuant to Article VI,

Sections 1 (k) and (1) of the Constitution of the Tribe approved January 27, 1936, as amended,

NOW THEREFORE,

BE IT RESOLVED BY THE SWINOMISH INDIAN SENATE that attached

amended Tribal Implementation Plan for portions of the Clean Air Act related to open burning on

the Swinomish Reservation is approved, shall be forwarded to the EPA for federal approval and

subsequent implementation by the Tribe.

CERTIFICATION

As Secretary of the Swinomish Indian Senate, I hereby certify that the foregoing Resolution was

approved at a Regular Meeting of the Swinomish Indian Senate held on /(.^,V^S , 2013, at

which time a quorum was present and the resolution was passed by a vote of rFOR, ,O

AGAINST, and d ABSTENTIONS.

Brian Cladoosby, Chair

Swinomish Indian Senate

Sop ie Bailey Secretary

Swinomish Indian Senate

Resolution No. 2013-11-W,

Page 2 of 2

Update: 10-30-2013
Swinomish Indian Tribal Community

November 5, 2013

Received

NOV 1$ 2013

Office Of Air, Waste

And Toxics

Swinomish Tribal Implementation Plan for Open Burning

Part I: Introduction

The Purpose of the Tribal Implementation Plan (TIP) for Open Burning on the

Swinomish Reservation is to provide a coordinated Plan to address all aspects of open

burning regulation on the Swinomish Reservation under Tribal ordinance and to

implement certain provisions of the Clean Air Act.

Pollution Reduction

It is the Tribe's goal to minimize open burning disposal practices, to encourage

the development of alternative disposal methods where such methods are feasible and

practicable, to emphasize resource recovery, and to encourage utilization of the best

practicable burning methods to minimize emissions where other disposal practices are not

feasible and practicable.

Permitting Process

The Swinomish Planning Department uses a fully developed and implemented

permitting system. All open burn permits and subsequent permit actions will be

documented and entered into a permit activity tracking program. The permit activity

tracking system is initiated when an application is submitted with a burn plan and burn

permit fees. The paper burn plan and permit are placed in the burn permit filing system

and are kept active for three years in the Swinomish Planning Department, then archived

1
Swinomish Indian Tribal Community

November 5, 2013

indefinitely. The electronic version of the permit is kept active in the permitting software

for a minimum of three years. During the permit application process there is ample

opportunity for the permittee to ask questions regarding compliance requirements for

burn permits in order to avoid permit violations after ignition.

The Department shall keep and maintain for 5 years records on burn bans enacted

on the Reservation.

Fire Suppression

Skagit County Fire District #13 responds to all fires posing an imminent danger to

public health and safety on the Reservation, including providing fire suppression

assistance to the Tribe's Open Burning program. Additionally, the Swinomish Police

Department may respond to fires on the Reservation in order to assist S.C.F.D. #13 with

fire suppression.

Compliance and Enforcement

Enforcement and compliance procedures currently in place for the Swinomish

Open Burning permit program, which are described below, will be continued under the

TIP for Open Burning, as detailed in Title 19, Chapter 2 of the Swinomish Tribal Code as

amended (Part II of this TIP). Complaints are received by the Swinomish Planning

Department either through direct calls or referrals from the Swinomish Police

Department or Skagit County Sherriff's Office. Air program staff from the Planning

Department will respond and investigate the complaint immediately during regular

business hours or as soon as practicable if the complaint was related to a burn after hours

2
Swinomish Indian Tribal Community

November 5, 2013

or on a weekend. Investigation includes observation at the burn site. If an unpermitted

burn, burning during a burn ban or other violations related to open burning are observed,

Planning Department staff may issue a verbal order to put out the fire immediately.

Otherwise, a written Notice of Violation may be issued. A fine may also be issued, the

amount of which will depend on severity of the violation, history of violations,

cooperation in rectifying the situation and other factors as detailed in STC 19-02.200. If

further civil enforcement process is required, because for example the actions continue or

fines are not paid after repeated reminders, the matter will be forwarded to the

Swinomish Legal Department for further action if appropriate.

Outreach

Outreach activities by the Tribe on Open Burning rules have been done through

occasional articles in the Tribal Newsletter (which reaches all resident Tribal members),

and informational brochures at various public events such as Earth Day and the Annual

Health Fair. Residents in the Shelter Bay Community, which does not allow open

burning, will be notified via their newsletter or mailers in cooperation with the Tribe.

Once we have an approved TIP for Open Burning, the Planning Department will send a

mailing to all other Reservation residents with information on our Open Burn program

and rules.

Public Notification

In accordance with 40 C.F.R. § 51.285, the Tribe will at least annually publish in

a local paper of general circulation notification regarding any instances in which any

3
Swinomish Indian Tribal Community

November 5, 2013

primary standard was exceeded during any portion of the preceding calendar year. Such

notice shall include periods of any such exceedance, advice on the potential health

hazards associated with the exceedance, potential measures to prevent exceedance and

ways to participate in regulatory and other efforts to improve air quality. The Tribe may

also provide such information in articles in the Tribal newsletter or on the Tribal website

as appropriate.

Adoption Process and Procedure

Part II of this TIP will be included within amendments to STC Chapter 19-02

(Swinomish Clean Air Ordinance). The proposed amended Swinomish Clean Air

Ordinance including Part II of this TIP is attached. Adoption of the proposed

amendments to STC Chapter 19-02 is subject to the Swinomish Tribal Constitution and

By-laws, review and adoption by the Swinomish Indian Senate, and approval by the

Department of Interior (if required). The Tribe will follow all requirements of 40 C.F.R.

§ 51.102 requiring notice and a public hearing prior to adoption of the TIP, and develop

and maintain a record of the hearing.

Conflicts of Interest

In accordance with Section 128 of the Clean Air Act, any board or individual

exercising approval authority over permits or enforcement orders issued pursuant to this

TIP, (1) shall have at least a majority of the members who represent the public interest

and do not derive any significant portion of their income from persons subject to permits

or enforcement orders under this Chapter ( provided however, that elected officials or

4
Swinomish Indian Tribal Community

November 5, 2013

employees of the Tribe who receive income from the Tribe for the performance of their

official duties may exercise approval authority over permits or enforcement orders issued

to the Tribe); and (2) shall adequately disclose any potential conflicts of interest. Any

such disclosures will be in writing to the Planning Commission and will become a part of

the record of the permit or enforcement order.

Resources

Resources needed annually to implement the TIP for open burning over a 5-year period

include staff time of .10 FTE for the Air Quality Analyst and ,05 FTE for the Air Quality

Technician to cover PM monitoring and analysis for the burn program, permitting and

enforcement. In addition, supplies to maintain the equipment, as well as travel and

training and indirect costs are included,

Resources needed to implement the TIP

Item Cost

Salary Air Quality Analyst (.10FTE) $ 8,160

Salary Air Quality Tech (.05FTE) $1,540

Tribal Match $1,468

Fringe $4.657

Supplies $ 500

Travel and Training $1,000

Indirect $5,996

Total $23,321

5
Swinomish Indian Tribal Community

November 5, 2013

We anticipate receiving funding from EPA as part of our Section 105 Air Program grant,

in addition to the Tribal match, to cover these costs, However, that is not assured at this

time. Should Section 105 EPA grant funding not be sufficient to cover these costs, we

will seek funding from other sources as needed, including, but not limited to, seeking

additional support through the Tribal budget process.

The following provisions are not part of the TIP being submitted to EPA for

approval.

The EPA will not review or approve the following sections of the Swinomish

Clean Air Ordinance, which are promulgated pursuant to the Tribe's inherent authority:

a) Subchapter I - Operating Permits;

b) Section 19-02,090(D), Nuisance; and

c) Section 19-02.130( B), Carbon emission fees.

6
Sec.

Title 19 - Environmental Protection

Chapter 2 - Clean Air Act

19-02.010 Title

19-02,020 Authority

19-02.030 Jurisdiction

19-02.040 Definitions

Subchapter I - Operating Permits

19-02.050 Adoption by Reference of NWCAA Regulations

19-02.060 Operating Permits

19-02.070 Operating Permit Fees

Subchapter II - Open Burning

19-02.080 Applicability of Subchapter

19-02.090 General Rules for Open Burning

19-02.100 Burn Bans

19-02.110 Open Burn Permits

19-02.120 Special Use Permits

19-02.130 Open Burn and Special Use Permit Fees

19-02.140 Standard Permit Conditions

19-02.150 Additional Permit Conditions

19-02.160 Burn Notification and Inspection

Subchapter III - Public Involvement

19-02.170 Public Information

19-02.180 Public Hearings

Subchapter IV - Enforcement

19-02.190 Enforcement

19-02.200 Penalties

19-02.210 Damages

Subchapter VI Appeals

19-02.220 Appeals of Department Decisions

19-02.230 Tribal Administrative Remedies and Tribal Court

19-02.240 Sovereign Immunity

Subchapter VI Repealer, Severability and Effective Date

Title 19, Chapter 2

Page 1
19-02.250 Repealer

19-02.260 Severability

19-02.270 Effective Date

Legislative History

Enacted:

Ordinance 307 Clean Air Act (3/6/12), BIA (3/9/12).

Ordinance 179 Clean Air Act, (9/30/03), BIA (10/7/03).

Ordinance 177 Codifying Title 19 - Environmental Protection and Repealing and

Superseding Ordinance Nos. 168, 90, Sections, 16-5.010 through 16-5.020, 36,

and Resolution 80-10-762 (9/3/03),

Repealed or Superseded:

Ordinance 36 Adopting and Enforcing Clean Air Standards (2/1/77), BIA

(2/19/77).

19-02.020 Title.

This Chapter shall be known and may be cited as the "Swinomish Clean Air Act."

19-02.020 Authority.

This Chapter is authorized pursuant to Article VI, Sections 1(a), (1), and (s) of the

Constitution of the Swinomish Indian Tribal Community, as most recently amended, and

by Sections 110, 301, and 505(a)(2) of the Air Pollution Control Act ("Clean Air Act"),

42 U.S.C. § 7401 et seq.

Pursuant to Section 301 of the Clean Air Act, the United States Environmental Protection

Agency ("EPA") approved the Tribe on February 16, 2010 for Treatment as a State to

administer Sections 110 and 505(a)(2) of the Clean Air Act.

19-02.030 Jurisdiction.

The provisions of this Chapter shall apply to all persons and property subject to the

governing authority of the Swinomish Indian Tribal Community to the maximum extent

permitted by law.

19-02.040 Definitions.

(A) For the purposes of this Chapter, unless explicitly stated otherwise, the following

words and phrases shall have the following definitions:

Title 19, Chapter 2

Page 2
(1) "Administrator" means the Administrator of the EPA or an authorized

representative.

(2) "Agricultural activity" means a usual and customary activity of

cultivating the soil, producing crops, and raising livestock for use and

consumption. "Agricultural activity" includes but is not limited to

activities necessary for or related to disease or pest control, crop

propagation, and crop rotation, but does not include manufacturing, bulk

storage, handling for resale, or the formulation of any agricultural

chemical.

(3) "Agricultural burning" means the burning of vegetative debris from an

agricultural activity.

(4) "Air Pollutant" means any air pollution agent or combination of such

agents, including any physical, chemical, biological, radioactive

(including source material, special nuclear material, and byproduct

material) substance or matter that is emitted into or otherwise enters the

ambient air. Such term includes any precursors to the formation of any air

pollutant, to the extent the Administrator has identified such precursor or

precursors for the particular purpose for which the term air pollutant is

used.

(5) "Airshed" means a part of the atmosphere that behaves in a coherent way

with respect to meteorology and to the dispersion of emissions.

(6) "Ambient Air" means that portion of the atmosphere, external to

buildings, to which the general public has access.

"Burn Ban" means a period of time when any open burning on the

Reservation is prohibited, except for open burns not subject to Subchapter

II of this Chapter pursuant to STC 19-02.080 and open burns that meet one

of the exceptions listed in Section 19-02.100(F).

"Commission" or "Planning Commission" means the Planning

Commission of the Swinomish Indian Tribal Community or its authorized

designee.

"Department" or "Planning Department" means the Swinomish Office

of Planning and Community Development.

(10) "Director" means the Director of the Swinomish Office of Planning and

Community Development or his authorized designee.

(11) "Emission" means a direct or indirect release into the atmosphere of any

air pollutant(s), or air pollutant(s) released into the atmosphere.

(7)

(8)

(9)

Title 19, Chapter 2

Page 3
(12) "Extinguished" means there is no visible smoke from a burn area and the

burn pile is cool enough for human touch.

(13) "Garbage" means food waste or material contaminated with food waste.

(14) "Non-combustible" means materials that are not flammable, capable of

catching fire, or burning.

(15) "Open burn" and "Open burning" mean the burning of a material which

results in the products of combustion being emitted directly into the

ambient air without passing through a stack. "Open burn" and "Open

burning" include but are not limited to burning in burn barrels.

(16) "Particulate matter" means any airborne finely divided solid or liquid

material other than uncombined water. Particulate matter includes but is

not limited to PM-10 and PM-2.5.

(17) "Pathogenic waste" means wastes capable of causing disease.

(18) "Permittee" means any person who holds a permit issued pursuant to the

terms of this Chapter.

(19) "Person" means any natural person; any corporation, trust, unincorporated

association, general or limited partnership, or limited liability company;

the United States or any State or local government or any of their

programs, agencies, or departments; any Indian tribe or any of its

programs, agencies, or departments; or any other legal entity, and includes

the Swinomish Indian Tribal Community.

(20) "PM-10" means particulate matter with an aerodynamic diameter less

than or equal to 10 micrometers.

(21) "PM-2.5" means particulate matter with an aerodynamic diameter less

than or equal to 2.5 micrometers.

(22) "Prohibited materials" means those materials listed in Section 19-

02.090(B).

(23) "Reservation" means the Swinomish Indian Reservation and includes all

lands and waters within the exterior boundaries of the Swinomish Indian

Reservation.

(24) "Senate" means the Swinomish Indian Senate, the governing body of the

Swinomish Indian Tribal Community.

Title 19, Chapter 2

Page 4
(25) "Structure" means any human-made assemblage of materials of any

nature whatsoever extending above and/or below the surface of the earth,

but does not include fill material.

(26) "Training fire" means an open burn conducted by qualified firefighting

personnel for the purpose of training firefighters in the methods of fire

suppression.

(27) "Tribe," "Tribal," and "Swinomish" mean or refer to the Swinomish

Indian Tribal Community, a federally recognized Indian tribe organized

pursuant to Section 16 of the Indian Reorganization Act of 1934, which is

composed of members tracing their ancestry to, and is a political and legal

successor in interest to, certain tribes and bands and groups of Indians

which were parties to the Treaty of Point Elliott.

(28) "Uncombined Water" means droplets of water that have not combined

with hygroscopic particles or do not contain dissolved solids.

(B) All other words and phrases shall have their customary and ordinary meanings.

Subchapter I -- Operating Permits

19-02.050 Adoption of NWCAA Regulations.

(A) Subject to subsection (C) of this Section, the air quality standards and regulations

of the Northwest Clean Air Agency ("NWCAA") as currently in effect or

hereafter amended are hereby adopted and incorporated as Tribal law, as if fully

set out herein. These standards and regulations include those used to sample,

quantify, limit, and otherwise determine whether a given source of pollution is in

compliance with applicable air quality standards.

(B) A copy of the NWCAA standards and regulations shall be marked and designated

as such, placed on file in the Planning Department, and made available for public

inspection during regular business hours.

(C) The following sections of NWCAA standards and regulations are excluded from

adoption and incorporation as Tribal law:

Section 324: Fees;

Section 502: Outdoor Burning;

Section 504: Agricultural Burning;

Sections 600 - 603: Objectives and Planning Criteria;

Sections 113 - 135: Notice, Hearings, Orders, Appeals and Penalties.

Title 19, Chapter 2

Page 5
(D) In the event that a provision of the NWCAA standards and regulations adopted

and incorporated as Tribal law is inconsistent with this Chapter, this Chapter shall

control.

[History] Ord. 177 (913103), Ord. 36 (211177).

19-02.060 Operating Permits.

(A) Subject to subsection (D) of this Section, any person that owns or operates a

facility within the Reservation that emits a statistically significant volume of air

pollutant shall obtain an operating permit from the Department prior to

commencing or continuing such operation.

(B) The Department shall maintain a current list of all persons required to obtain an

operating permit pursuant to subsection (A) of this Section.

(C) Operating permits shall be for a period of one (1) year and shall be renewable

upon an application by the permittee to the Department.

(D) The Department may waive the requirement to obtain an operating permit under

subsection (A) of this Section upon a written showing that:

(1) The requirements would impose an undue hardship on the applicant;

(2) Waiver of the requirements would not significantly affect the quality of

the airshed; and

(3) Waiver of the requirements would be in the best interest of the Tribe.

[History] Ord. 177 (913103), Ord. 36 (211177).

19-02.070 Operating Permit Fees.

(A) The Tribe shall charge a reasonable fee, based on the level of emissions for a

given facility, for issuing and renewing the operating permits required by Section

19-02.060.

(B) Subject to Senate approval, the Department shall publish the fees in a fee

schedule. A copy of the fee schedule shall be marked and designated as such,

placed on file in the Department, and made available for public inspection during

regular business hours.

(C) From time to time, the Department may recommend changes in the fee schedule

for Senate approval.

Title 19, Chapter 2

Page 6
[History] Ord. 177 (913103).

Subchapter II -Open Burning

19-02.080 Applicability of Subchapter.

This Subchapter applies to any open burn conducted within the Reservation, except for an

open burn conducted for Tribally-recognized cultural or spiritual purposes.

19-02.090 General Rules for Open Burning.

(A) Fire safety and air quality protection provisions. No person shall commence

or continue an open burn within the Reservation unless such open burn:

(1) Is attended at all times;

(2) Is conducted only during daylight hours, except for cooking and

recreational fires:

(3) Burns only materials that have been kept as dry as practicable;

(4) Burns only materials that have been separated from non-combustible

materials as much as practicable;

Burns only materials that have been separated from the grass or peat layer

as much as practicable;

Is capable of being immediately extinguished;

Is not allowed to smolder; and

Is extinguished when the burn is complete.

(B) Prohibited materials.

(1) Subject to subsection (B)(2) of this Section, no person shall burn or allow

the burning of the following materials within the Reservation:

(a) Structures;

(b) Garbage;

(c) Dead animals or parts of dead animals, unless pursuant to the

lawful order of a public health official;

(5)

Title 19, Chapter 2

Page 7
(d) Junked motor vehicles or any materials resulting from a salvage

operation;

(e) Tires or rubber materials or products;

(f) Plastics, plastic products, or Styrofoam;

(g) Asphalt or composition roofing, or any other asphaltic material or

product;

(h) Tar, tarpaper, petroleum products, or paints;

(i) Paper, paper products, or cardboard other than what is necessary to

start a fire;

(j) Lumber or timbers treated with preservatives;

(k) Construction debris or demolition waste;

(1) Pesticides, herbicides, fertilizers, or other chemicals;

(m) Insulated wire;

(n) Batteries;

(o) Light bulbs;

(p) Materials containing mercury (e.g., thermometers);

(q) Asbestos or asbestos-containing materials;

(r) Pathogenic wastes;

(s) Hazardous wastes, as defined under 40 C.F.R. § 261.3;

(t) Any material other than natural vegetation that normally emits

dense smoke or noxious fumes when burned;

(u) Any material from a site other than the parcel number upon which

the open bum is conducted; or

(v) Fireworks or associated packaging, other than fireworks the

burning of which is permitted under Title 15, Chapter 2 of the

Swinomish Tribal Code Fireworks.

Title 19, Chapter 2

Page 8
(2) A training fire containing prohibited materials may be permitted by the

Department pursuant to Section 19-02.120, provided that such burn

complies with all other provisions of this Chapter, other applicable

provisions of Tribal law, and applicable provisions of Federal law.

(C) Carbon monoxide, PM2.5 and PM-10. No person shall commence or continue

an open burn within the Reservation that is determined by the Department to

contribute to an exceedence of Federal ambient air quality standards for carbon

monoxide, PM-10 or PM-2.5.

(D) Nuisance. No person shall commence or continue an open burn within the

Reservation that endangers public health or welfare or that constitutes a nuisance,

19-02100 Burn Bans.

(A) The Department may declare a burn ban during an episode or period of impaired

air quality or high fire danger.

(B) The Department shall declare a burn ban based on impaired air quality when one

or more of the following pollutant concentrations is measured or predicted within

the Reservation to:

(1) exceed 75% of the currently effective National Ambient Air Quality

Standards for PM 2.5 or PM10; or

(2) exceed any other of the currently effective National Ambient Air Quality

Standards, 40 C.F.R. Part 50.

(C) The Department may declare a burn ban based on data or meteorological

conditions in the airshed indicating impaired air quality conditions.

(D) The Department may declare a burn ban based on high fire danger when moisture

levels in live and/or dead biomass indicate those materials have become

extremely flammable.

(E) The Department shall provide notice of a burn ban by placing a sign by the side of

each main road providing access to the Reservation and by posting notice on the

open burning hotline, and, in its discretion, by sending notice to all Tribal

departments and posting notice on the Tribal website,

(F) No person shall commence or continue an open burn within the Reservation

during a burn ban, provided, however, that:

(1) An open burn for cooking or recreational purposes may be commenced or

continued during a burn ban provided such burn is less than four feet in

diameter, less than three feet in height, and contained within a fire ring,

Title 19, Chapter 2

Page 9
barbeque, or similar structure, unless the Department has issued notice

pursuant to subsection (G)(1) of this Section that such an open burn is

prohibited; and

(2) An open burn commenced prior to the declaration of a burn ban may be

continued during a burn ban if the Department determines that immediate

cessation of the open burn would likely cause greater emissions than

allowing the open burn to continue and specifically authorizes in writing

the open burn to continue.

(G) The Department in its discretion may, based on the severity of air quality

conditions or fire danger:

(1) Prohibit all open burning including fires for cooking and recreational

purposes; and

(2) Prohibit the use of woodstoves, except in homes in which woodstoves are

the primary heating source.

[History] Ord. 307 (3/6/12); Ord. 179 (9/30/03).

19-02.110 Open Burn Permits.

(A) Unless the open burn requires a special use permit pursuant to Section 19-02.120,

any person who commences an open burn within the Reservation that is four or

more feet in diameter or three or more feet in height shall obtain an open burn

permit from the Department prior to commencing such open burn and shall

comply with the conditions of the permit when conducting such open burn.

(B) An open burn permit application shall be submitted to the Department at least

three working days prior to the date that the open burn is to be commenced. The

application shall be on a form approved by the Department and shall contain, at a

minimum, the following information:

(1) Street address and parcel number of the property upon which the proposed

open burn will occur;

(2) Name, mailing address, and telephone number of the owner(s) of the

property upon which the proposed open burn will occur;

(3) Name, mailing address, and telephone number of the person responsible

for conducting the proposed open burn;

(4) A plat or other map:

Title 19, Chapter 2

Page 10
(a) Showing the area over which the proposed burn would be

conducted;

Showing the location of the proposed open burn in relation to

property lines and vehicle access to the property; and

Indicating the distances to and directions of any structures and

other combustible materials, including but not limited to standing

woody vegetation, within 200 feet of the proposed burn site;

(5) The type and quantity of materials proposed to be burned, including the

estimated size of the material to be burned;

(6) A description of the measures that will be taken to prevent escaped fires;

(7) The requested date(s) when the proposed open burning would be

conducted; and

(8) Any other information requested by the Department if such information is

reasonably necessary to determine the anticipated effects of the proposed

burn.

(C) When reviewing an application for a burn permit, the Department shall, at a

minimum, consider:

The nature, size, duration, and location of the proposed burn;

The anticipated effects of the proposed burn;

Current and projected air quality conditions; and

The anticipated cumulative effects of the proposed burn and other

scheduled burns in the area.

(D) The Department may issue an open burn permit if it determines that the proposed

open burn will not cause an adverse impact on Reservation air quality or

otherwise endanger public health or welfare.

(E) An open burn permit shall include the standard permit conditions listed in Section

19-02.140 and may include any additional permit conditions authorized by

Section 19-02.150.

(F) A person whose application for an open burn permit is denied by the Department

may appeal the denial in accordance with Section 19-02.220.

19-02.120 Special Use Permits.

(b)

(c)

Title 19, Chapter 2

Page 11
(A) A special use permit is required for:

(1) Training fires, including but not limited to training fires containing any

prohibited materials; and

(2) Agricultural burning.

(B) Any person who commences an open burn within the Reservation requiring a

special use permit shall obtain a special use permit from the Department prior to

commencing such open burn and shall comply with the conditions of the permit

when conducting such open burn.

(C) Application requirements.

(1) A special use permit application shall be submitted to the Department at

least three working days prior to the date that the open burn is to be

commenced. The application shall be on a form approved by the

Department and shall contain, at a minimum, the information described in

Section 19-02.110(B).

(2) An application for a special use permit to conduct a training fire shall also

include:

(a) A statement regarding the qualifications of the firefighting personnel who

will conduct or participate in the training fire; and

(b) A description of any prohibited materials that will or may be burned

during the training fire.

(3) An application for a special use permit to conduct agricultural burning

shall also include a description of the nature and volume of the vegetative

debris proposed to be burned.

(D) When reviewing an application for a special use permit, the Department shall, at a

minimum, consider:

The nature, size, duration, and location of the proposed burn;

The anticipated effects of the proposed burn;

Current and projected air quality conditions; and

The anticipated cumulative effects of the proposed burn and other

scheduled burns in the area.

Title 19, Chapter 2

Page 12
(E) The Department may issue a special use permit if it determines that the proposed

open burn:

(1) Will not cause an adverse impact on Reservation air quality, including but

not limited to an exceedence of any applicable Tribal or Federal air quality

standard;

(2) Does not otherwise endanger public health or welfare; and

(3) Is in the best interest of the Tribe.

(F) A special use permit shall include the standard permit conditions listed in Section

19-02.140 and may include any additional permit conditions authorized by

Section 19-02.150.

(G) A person whose application for a special use permit is denied by the Department

may appeal the denial in accordance with Section 19-02.220.

19-02.130 Open Burn and Special Use Permit Fees.

(A) The Tribe shall charge a reasonable fee, based on the estimated level of emissions

for a given burn, for issuing open burn permits pursuant to Section 19-02.110 and

special use permits pursuant to Section 19-02.120. The fee shall be at least

$100.00 for the first day of burning and at least $50.00 for each additional day of

burning.

(B) For open burns likely to emit 1 ton or more of carbon dioxide, an additional fee

not less than $5 per ton of carbon dioxide estimated to be emitted shall also be

assessed.

(C) Subject to Senate approval, the Depai Intent shall publish the fees in a fee

schedule. A copy of the fee schedule shall be marked and designated as such,

placed on file in the Department, and made available for public inspection during

regular business hours.

(D) From time to time, the Department may recommend changes in the fee schedule

for Senate approval.

[History] Ord. 179 (9130103)).

19-02.140 Standard Permit Conditions.

(A) The following conditions apply to any open burn permit issued pursuant to

Section 19-02.110 or special use permit issued pursuant to Section 19-02.120 and

shall be included in such permit:

Title 19, Chapter 2

Page 13
(1) The permittee shall comply with Section 19-02.090, General Rules for

Open Burning, and Section 19-02.100(F), Burn Bans.

(2) A bum pile shall not exceed 20 feet in diameter or 16 feet in height.

(3) A burn pile shall be setback from structures and standing woody

vegetation at least six and one-half (6.5) feet for every one (1) foot in

diameter of the burn pile, provided, however, that the Department may

increase minimum setback requirements in order to protect public health

and welfare.

(4) The following shall be present at the burn site during the open burn:

(a) At least one piece of heavy land clearing equipment (for example,

a bulldozer, track excavator, or backhoe);

(b) A tank containing at least 500 gallons of water with a pump

capable of delivering at least 35 gallons of water per minute;

(c) A person qualified to operate the equipment required in

subsections (A)(4)(a) and (b) of this Section; and

(d) A copy of the open burn or special use permit.

(5) An open burn shall not be commenced if wind speeds are greater than 7

miles per hour and shall be extinguished if wind speeds are greater than 15

miles per hour or are gusting to 20 or more miles per hour.

(6) The permittee shall immediately extinguish the fire if instructed to do so

by the Department, a law enforcement officer, or public health or safety

official.

(B) The following condition applies to any special use permit issued pursuant to

Section 19-02.120 authorizing a training fire to demolish a structure by fire and

shall be included in such permit: Prior to igniting any structure, the permittee shall

ensure that the structure does not contain any asbestos or asbestos-containing

materials; batteries; stored chemicals such as pesticides, herbicides, fertilizers,

paints, glues, sealers, tars, solvents, household cleaners, or photographic reagents;

stored linoleum, plastics, rubber, tires, or insulated wire; or hazardous wastes.

19-02.150 Additional Permit Conditions.

(A) The Department may impose conditions in addition to those listed in Section 19-

02.140 on open burn permits issued pursuant to Section 19-02.110 and special use

permits issued pursuant to Section 19-02.120 if it determines that additional

conditions are necessary to minimize the anticipated adverse effects of an open

Title 19, Chapter 2

Page 14
burn on Reservation air quality or public health or welfare. If additional permit

conditions are imposed, they shall be included in the permit.

(B) Without limitation, the Department may require that:

(1) The pennittee employ a high volume fan (for example, a fan capable of

circulating at least 12,000 cubic feet per minute) immediately after the

open burn is ignited in order to reduce smoke and prevent smoldering; and

(2) If two or more burn piles are permitted to be burned at the same site, the

permittee not ignite the second or subsequent burn pile(s) until previouslyignited burn piles are 75% or more consumed.

19-02.160 Burn Notification and Inspection.

For all permitted burns, the pennittee shall:

(A) Call the Department inspection line at least two working days prior to

commencing an open burn to notify the Department of the burn;

(B) Comply with any request by the Department to inspect the open burn site prior to

ignition; and

(C) Not less than one hour prior to commencing an open burn, and during regular

business hours, notify Fire Dispatch of his or her intent to commence an open

bum.

Subchapter III- Public Involvement

19-02.170 Public Information.

The Department shall institute a program designed to provide the public with information

regarding the development and implementation of this Chapter. Such program shall meet

the requirements for public notification per 40 C.F.R. §51.285.

[History] Ord. 3 07 (316112);

19-02.180 Public Hearings.

(A) Public hearings required or authorized to be conducted pursuant to 40 C.F.R. Part

51 or this Chapter shall be conducted in accordance with 40 C.F.R. §51.102, as

currently in effect or hereafter amended.

[History] Ord. 307 (316/12);

Title 19, Chapter 2

Page 15
Subchapter IV - Enforcement

19-02.190 Enforcement.

(A) Inspections. The Department may inspect all activities subject to this Chapter to

ensure compliance with this Chapter and applicable permit conditions.

Department officials may enter the premises or location of activities subject to

this Chapter at reasonable times to inspect such activities and otherwise perform

the duties established pursuant to this Chapter. Department officials shall make a

reasonable effort to locate the owner of or a person with authority over the

premises to request entry. If entry is refused, the official shall have recourse to

the remedies provided by law to secure entry.

(B) Orders.

(1) In the event of any violation of this Chapter or an applicable permit

condition, the Department may issue an immediately effective

enforcement order:

(a) Revoking an operating permit, open burn permit, or special use

permit issued pursuant to this Chapter; and/or

(b) Requiring the landowner, permittee, or other responsible party to

perform any or all of the following:

Cease or abate the activity causing the violation;

Pay a civil penalty in accordance with Section 19-02.200;

and/or

(iii) Pay damages pursuant to Section 19-02.210.

(2) Any Notice of Violation issued by the Department pursuant to this Section

shall cite the nature, time, date, and location of the violation; the

Section(s) of this Chapter and/or permit condition applicable to the

violation; the name and address of the responsible party; contact

information for the Department; and any required action(s) that must be

taken by the responsible party.

(3) A person to whom an enforcement order is issued by the Department

pursuant to this Section may appeal the order in accordance with Section

19-02.220. Notwithstanding such an appeal, an orders revoking a permit,

or to cease abate violating activity shall remain in effect until recinded by

a written appeals decision.

(i)

(ii)

Title 19, Chapter 2

Page 16
(4) The Director shall disclose in writing to the Planning Commission any

conflicts of interest with regard to persons subject to permit and

enforcement orders under this Chapter. Such disclosure shall be part of

the record of any applicable permit or enforcement order.

[History] Ord. 307 (316112).

19-02.200 Penalties.

(A) Penalties for violations of this Chapter or applicable permit conditions shall be a

civil fine of not less than $100.00 per day per violation and not more than

$10,000.00 per day per violation. The Department shall assess the fine based

upon its consideration of the following factors:

(1) The severity of the violation, in terms of the effect of the violation on

Reservation air quality and public health and welfare;

(2) Whether the responsible party has been determined to have committed

past violations of this Chapter, applicable permit conditions, or other

provisions of Tribal or Federal law related to environmental protection or

land use;

The staff time required to correct the violation;

Whether the responsible party has cooperated with the Tribe in addressing

the violation, which may allow reduction of the fine by up to 50% based

on all of the following:

(a) Whether the responsible party immediately complied with an

enforcement order to cease the violation;

Whether the responsible party took actions to correct the violation

as quickly as feasible;

Whether the responsible party fully cooperated with investigations

related to the violation; and

(d) Whether the responsible party fully rectified the violation within

thirty (30) days of notice of violation.

(B) For the purpose of assessing a penalty, each day an activity is in violation of this

Chapter or an applicable permit condition is a separate violation of this Chapter or

the permit condition.

(C) If the violation was committed during a burn ban, the penalty may be doubled.

(b)

(c)

Title 19, Chapter 2

Page 17
19-02.210 Damages.

In addition to any other remedies provided by this Chapter for a violation of this Chapter

or an applicable permit condition, including but not limited to penalties assessed pursuant

to STC 19-02.200, the Department is authorized to assess and to recover by means of a

civil suit filed in Swinomish Tribal Court, on behalf of the Tribe, damages in the

following amounts:

(A) Double the economic benefit the violator gained by non-compliance with this

Chapter or an applicable permit condition, as determined by the Department; or

(B) Double the harm the Tribe sustained due to the person's violation of this Chapter

or an applicable permit condition, as determined by the Department; or

(C) Double the amount of money the Tribe expended in mitigating the adverse effects

on Reservation air quality and public health and welfare of the violation of this

Chapter or an applicable permit condition, as determined by the Department.

Subchapter VI Appeals

19-02.220 Appeals of Department Decisions.

Any person whose permit application under Sections 19-02.060, 19-02.110, or 19-02.120

of this Chapter is denied by the Department, to whom the Department issues an

enforcement order under Section 19-02.190(B), or against whom the Department assesses

penalties under Section 19-02.200 may appeal the decision in accordance with STC 19-

04.560 through 19-04.600.

*Previously codified as 19-02.230

[History] Ord. 307 (316112).

19-02.230 Tribal Administrative Remedies and Tribal Court.

All cases or controversies arising under the terms and provisions of this Chapter shall be

heard only in the Swinomish Tribal Court, and only as provided in this Subchapter. An

applicant or other aggrieved party must exhaust any and all administrative remedies

before seeking review in Tribal Court.

*Previously codified as 19-02.240

[History] Ord. 307 (316112).

Title 19, Chapter 2

Page 18
19-02.240 Sovereign Immunity.

The sovereign immunity of the Tribe is not in any way waived or limited by this Chapter,

or by any appeal commenced pursuant to this Chapter, and nothing in this Chapter shall

constitute or be construed as a waiver of the sovereign immunity of the Tribe. Such

sovereign immunity shall extend to the Tribe, the Senate, the Planning Commission, the

Department, the Department Director, all Tribal officials, employees, staff, and agents, as

to all actions taken pursuant to this Chapter, or taken in, pursuant to, or concerning, the

administration or enforcement of this Chapter, and as to all actions taken pursuant to any

authority of any action, decision or order authorized by this Chapter.

*Previously codified as 19-02.250

[History] Ord. 307 (316112).

Subchapter VI- Repealer, Severability and Effective Date

19-02.250 Repealer.

This Chapter repeals and supersedes all prior inconsistent provisions of a Tribal

ordinance or resolution, the Swinomish Tribal Code, or a part thereof, provided, however,

that the repeal or amendment of any prior inconsistent provision of a Tribal ordinance or

resolution, the Swinomish Tribal Code, or a part thereof by this Chapter shall not affect,

release, or extinguish any civil or criminal liability, penalty, or forfeiture incurred, or any

right to prosecute or recover based on the same accrued, under such provision prior to the

repeal or amendment thereof, and such provision shall be treated as still remaining in

force as to liabilities, penalties, forfeitures, and rights arising under such provision, and

the repeal or amendment of such provision shall not affect any proper prosecution or

action thereunder.

*Previously codified as 19-02.260

[History] Ord. 307 (316112); Ord. 179 (9130103).

19-02.260 Severability.

If any provision of this Chapter or its application to any person or circumstances is held

invalid, the remainder of the Chapter, or the application of the provision to other persons

or circumstances is not affected and to this end the provisions of this Title are declared to

be severable.

*Previously codified as 19-02.270

[History] Ord. 307 (316112).

Title 19, Chapter 2

Page 19
19-02.270 Effective Date.

This Chapter shall become effective immediately upon approval of the Secretary of the

Interior or his or her designee.

*Previously codified as 19-02.280

[History] Ord. 307 (316112).

Title 19, Chapter 2

Page 20
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

1200 Sixth Avenue, Suite 900

Seattle, Washington 98101-3140

FEB 1 6 2010

REGIONAL ADMINISTRATOR

The Honorable M. Brian Cladoosby

Tribal Chairperson

Swinomish Indian Tribal Community

P.O. Box 817

La Conner, Washington 98257

Dear Chairperson Cladoosby:

I am pleased to inform you that the U.S. Environmental Protection Agency (EPA) Region 10

has completed our review of the Swinomish Indian Tribal Community's application for "treatment in

the same manner as a state (TAS)" for the purpose of being treated as an "affected state" under

Section 505(a)(2) of the Clean Air Act (CAA), and to implement a Tribal Implementation Plan (TIP)

to regulate open burning on the Swinomish Reservation under Section 110 of the CAA.

After review of the application and considering the comment received from the State of

Washington, EPA has determined that the Swinomish Indian Tribal Community meets the

requirements of CAA Section 301(d) and EPA regulations at 40 CFR Part 49 for the stated functions.

Therefore the Swinomish Indian Tribal Community is eligible to be treated in the same manner as a

state for purposes of implementing a TIP to regulate open burning on the Swinomish Reservation and

commenting as an affected state.

We are pleased to make this positive determination. As the Swinomish Indian Tribal

Community moves forward in implementing and operating programs for the prevention and control

of air pollution, we look forward to continued collaboration for environmental protection. If you

have any questions on this matter, please do not hesitate to contact me (206) 553-1234, or Justin A.

Spenillo, State & Tribal Air Programs Unit, at (206) 553-6125.

Sincerely,

Enclosure: Eligibility Determination

cc: Mr. Charles O'Hara, Planning Director

Swinomish Indian Tribal Community

Mr. Ted Sturdevant, Director

Washington Department of Ecology

Michelle L. Pirzadeh

Acting Regional Administrator
5'sra UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

51 1200 Sixth Avenue, Suite 900

o%, Seattle, Washington 98101-3140

'II'9L PROS^^'

ELIGIBILITY DETERMINATION FOR THE SWINOMISH INDIAN TRIBAL

COMMUNITY

FOR TREATMENT IN THE SAME MANNER AS A STATE

UNDER THE CLEAN AIR ACT

The Office of Regional Counsel (ORC) and the Office of Air, Waste and Toxics

(OAWT) have reviewed the application, dated January 6, 2009, of the Swinomish Indian

Tribal Community (SITC), for eligibility for treatment in the same manner as a state

(TAS) for two purposes: (1) having "affected state" status under § 505(a)(2) of the Clean

Air Act (CAA); 1 and (2) implementing a Tribal Implementation Plan (TIP) for open

burning under CAA § 110. Based on that review and the analysis set forth below, ORC

and OAWT conclude that application meets the requirements of 40 CFR § 49.7, and

recommend that the Regional Administrator determine that SITC meets the requirements

of CAA § 301(d) and 40 CFR § 49.6 and is therefore eligible to be treated in the same

manner as a state for the two purposes specified above. This document addresses SITC's

eligibility to implement a TIP. Review and approval or disapproval of any TIP that SITC

proposes would be the subject of a separate notice and comment process.

ELIGIBILITY REQUIREMENTS

EPA published the Air Quality Planning and Management Rule for Indian Tribes

(Tribal Authority Rule or TAR) on February 12, 1998. 63 Fed. Reg. 7,254 (February 12,

1998). The TAR at 40 CFR § 49.6 states:

Sections 301(d)(2) and 302(r), 42 U.S.C. §§ 7601(d)(2) and 7602(r),

authorize the Administrator to treat an Indian Tribe in the same manner as

a state for the CAA provisions identified in 40 CFR § 49.3 if the Indian

Tribe meets the following criteria:

(a) The applicant is an Indian Tribe recognized by the Secretary of

the Interior;

The Clean Air Act (CAA) is codified at 42 U.S.C. §§ 7401-7671q.
(b) The Indian Tribe has a governing body carrying out substantial

governmental duties and functions;

(c) The functions to be exercised by the Indian Tribe pertain to the

management and protection of air resources within the exterior boundaries

of the reservation or other areas within the Tribe's jurisdiction; and

(d) The Indian Tribe is reasonably expected to be capable, in the EPA

Regional Administrator's judgment, of carrying out the functions to be

exercised in a manner consistent with the terms and purposes of the CAA

and all applicable regulations.

STATE AND PUBLIC REVIEW

The TAR at § 49.9(b) provides that the Regional Administrator shall notify

appropriate governmental entities of an Indian tribe's initial, complete application under

the CAA. By a letter from the Regional Administrator to Governor Gregoire, dated

February 12, 2009, EPA provided the State of Washington a copy of SITC's application,

and offered the State an opportunity to submit comments on STTC's description of its

Reservation boundaries within 30 days, as provided in the TAR at § 49.9(c). EPA also

provided notice of the application in the Skagit Valley Herald and the Seattle Times, and

invited local governments and the public to submit any comments they may have on the

Reservation boundaries to EPA and the State of Washington.

In a letter dated March 20, 2009, the State of Washington submitted comments on

the TAS application. The State did not dispute the Swinomish Reservation boundaries as

described in the TAS application, and raised no objection to the TAS application. The

State's comments also stated that the State had received no comments on the TAS

application from other parties, such as local governments or members of the public. EPA

received no other comments on the TAS application.

ELIGIBILITY REVIEW

The following evaluation reviews whether SITC meets the TAS eligibility criteria

for the purposes of CAA § 110 and 505(a)(2).

1. Federal Recognition

SITC is included on the list published by the Secretary of the Interior of Indian

entities recognized and eligible for funding and services from the Bureau of Indian

Affairs by virtue of their status as Indian tribes. 74 Fed. Reg. 40,218, 40,221 (August 11,

2009).
The application meets the requirements of 40 C.F.R. § 49.7(a)(1), and SITC meets

the requirement of 40 C.F.R. § 49.6(a).

2. Substantial Governmental Duties and Powers

SITC is organized pursuant to Section 16 of the Indian Reorganization Act of

1934, 25 U.S.C. § 476, through a Constitution and Bylaws originally ratified by members

on November 16, 1935, and approved by the U.S. Secretary of the Interior on January 27,

1936. The Constitution and Bylaws were most recently amended and ratified by SITC on

September 7, 1985, and approved by the U.S. Secretary of the Interior on October 22,

1985.

The Constitution authorizes the Swinomish Indian Senate to carry out the

executive and legislative functions of the SITC government. Articles III and VI. The

Senate consists of eleven members who serve staggered five year terms, and are elected

by eligible SITC members, Article III Sec. 2, Article VI. The Senate has the authority to

create and oversee subcommittees, and to appoint, employ, and manage staff to carry out

executive governmental functions. Article III Sec. 3, Article VI Sec. 1(s).

SITC carries out a number of governmental functions related to health, education

and welfare, including zoning and environmental protection, as described in the

Application. These include pre-school, school, and college educational programs, social

services, housing, corrections, medical services, utilities, fish and wildlife management,

and taxation. A tribal court system exercises judicial powers, and consists of trial court

(the Swinomish Tribal Court) and an appellate court (the Swinomish Court of Appeals).

To carry out these functions, SITC employs more than one hundred individuals, including

police officers, medical professionals, managers, scientists, and other personnel.

The TAS application demonstrates that SITC is an Indian tribe with a governing

body carrying out substantial governmental duties and powers. The application meets the

requirements of 40 C.F.R. § 49.7(a)(2), and SITC meets the requirement of 40 C.F.R. §

49.6(b).

3. The functions to be exercised by the Indian Tribe pertain to the management and

protection of air resources within the exterior boundaries of the reservation or other

areas within SITC's jurisdiction

CAA § 301(d)(2)(B) and the TAR at § 49,6(c) require that the functions to be

exercised by the applicant Indian tribe pertain to the management and protection of air

resources "within the exterior boundaries of the reservation or other areas within the

tribe's jurisdiction." For reservations, CAA § 301(d)(2)(B) is a grant of statutory

authority to eligible tribes to regulate all air resources within the boundaries of their

reservations. See 63 Fed. Reg. 7254-57 (Feb. 12, 1998); Arizona Public Service Co. v.

EPA, 211 F.3d 1280 (D.C. Cir. 2000) (upholding the TAR), cert. denied sub nom.,

Michigan v. EPA, 532 U.S. 970 (2001). Thus, in applications where the tribe proposes to

manage and protect air resources only within the boundaries of its reservation, the
primary focus of the inquiry into the tribe's authority to do so is the precise boundaries of

the reservation. Accordingly, an applicant tribe must identify with clarity and precision

the exterior boundaries of the reservation. 40 C.F.R. § 49.7(a)(3). Typically, a map or

legal description of the area is sufficient. See id.; 59 Fed. Reg. 43,956, 43,962 (Aug. 25,

1994). In this application, SITC seeks TAS under CAA § 301(d) for purposes of CAA

§§ 110 and 505(a)(2) 1 for all lands within the exterior boundaries of the Swinomish

Indian Reservation.

The Swinomish Indian Reservation is located on Fidalgo Island, in Skagit County

near LaConner, Washington, about 70 miles north of Seattle. SITC's application

identifies the exterior boundaries of the Reservation lands within which it seeks to

exercise functions pertaining to the management and protection of air resources. The

application describes those boundaries exactly as they were described in the Findings of

Fact that EPA made in its April, 2008, Decision Document approving SITC's application

for TAS under Sections 303(c) and 401 of the Clean Water Act, as supported by the map

SITC submitted. Neither the State of Washington, nor any members of the public, has

disputed those boundaries in the public notice and comment process for this CAA TAS

application. Thus, this Application appropriately identifies valid reservation boundaries

within which SITC seeks to manage and protect air resources.

The application meets the requirements of 40 C.F.R. § 49.7(a)(3), and SITC meets

the requirement of 40 C.F.R. § 49.6(c).

4. The Indian Tribe is reasonably expected to be capable, in the EPA Regional

Administrator's judgment, of carrying out the functions to be exercised in a manner

consistent with the terms and purposes of the CAA and all applicable regulations

SITC is seeking eligibility to act as an "affected state" under CAA § 505(a)(2),

and to act in the same manner as a state under CAA § 110. SITC has an Air Quality

Program as part of its Planning Department. The Air Quality Program primarily focuses

on monitoring air quality, and also has worked on a variety of air related projects

including Indoor Air Quality and Woodstove changeouts. It has operated two outdoor air

quality monitoring stations for more than five years, monitoring both air quality and

meteorological conditions. SITC has also regulated open burning on the Reservation

through its inherent authority, in a manner similar to that provided in the Federal

Implementation Plan under Federal Air Rules for Reservations. The Air Quality Program

' Under CAA § 505(a)(2), states whose air quality may be affected and that are

contiguous to the state in which the emissions from a major source originate and states

that are within fifty miles of the source are afforded notice and an opportunity to submit

written recommendations respecting the issuance of the permit and its terms and

conditions. Although the permitting authority must explain any failure to accept such

recommendations, there is no requirement that the permitting authority modify its action

in response to comments from an affected. state. Thus, the function of affected state

status under CAA § 505(a)(2) entails no exercise of regulatory authority under the CAA.
is funded in part by the EPA through a CAA § 105 grant which provides partial FTE for

two employees.

SITC also administers related or similar programs pertaining to water quality,

public health, and noxious weed control, and has participated in several hazardous waste

sites on the Reservation.

Based on the EPA's experience administering grants to SITC and working with

SITC on various regulatory programs, as well as information in SITC's TAS Application,

EPA concludes that SITC is capable of administering § 110 and § 505(a)(2) of the CAA

in the same manner as a state.

The application meets the requirements of 40 C.F.R. § 49.7(a)(4), and SITC meets

the requirement of 40 C.F.R. § 49.6(d).

RECOMMENDATION

Based on the analysis set forth above, ORC and OAWT conclude that SITC's

TAS application meets the requirements of 40 CFR § 49.7, and recommends that the

Regional Administrator determine that SITC meets the requirements of CAA § 301(d)

and 40 CFR § 49.6, and is therefore eligible to be treated in the same manner as a state

for two purposes: (1) having "affected state" status under CAA § 502(a)(2); and (2)

implementing a Tribal Implementation Plan (TIP) for open burning under CAA § 110.

'Richard Albright, Director

Office of Air, Waste, and Toxics

DETERMINATION

Based on the information provided to me by The Swinomish Indian Tribal

Community, and the above Eligibility Review and Recommendation from the EPA

Region 10 Office of Air, Waste and Toxics and Office of Regional Counsel, I have

determined that the Swinomish Indian Tribal Community meets the requirements of

Section 301(d) of the Clean Air Act, and 40 CFR § 49.6, for two purposes: (1) having

"affected state" status under Section 505(a)(2) of the Clean Air Act, and (2)

implementing a Tribal Implementation Plan for open burning under Section 110 of the

Clean Air Act.
Cohon, K Spenillo, J Islam, M Allnutt, D

Initial -

Date 2/3//o '?/f7i [ -1-Ti1 1iC^

Michelle L. Pirzadeh

Acting Regional Administrator
MEMORANDUM

To; EPA

From: Scott Andrews, Environmental Management Coordinator

Date: May 22, 2012

Re: Sufficient Personnel and Resources to develop, implement and enforce the TIP

The TIP, Part 1, the sections on "Compliance and Enforcement" and "Resources" -

discusses program compliance and enforcement elements and process.

The TAS under IV(D)3 - also addresses details regarding Swinomish personnel to

develop, implement and enforce the Open Burning Program.
Subchapter IX - Hearings, Appeals, Computation of Time and Law Applicable

19-04.560 Request for Hearing Before the Planning Commission.

(A) Any party aggrieved by a decision or action of the Planning Department or Director, for which

this Chapter provides a right to request a hearing, may request such a hearing by the Planning

Commission within thirty calendar days from the date of notice of the challenged decision or within

thirty calendar days from the date of the challenged action, as applicable.

(B) Any request for a hearing shall be filed with the Planning Department and shall state:

(1) The reasons for the hearing request, specifically identifying any claimed errors involving any of

the following in the challenged decision or action:

(a) Conclusions as to Swinomish law, plans or policies, as to Federal law, or in the application of

such law, plans or policies;

(b) Any factual findings or statements of facts; or

(c) Any arbitrary or capricious action; and

(2) Any way in which the party requesting a hearing has been or will be substantially prejudiced by

the challenged decision or action.

[History] Ord. 239 (08/02/05).

19-04.570 Hearings by the Planning Commission.
(A) All Planning Commission hearings held pursuant to this Chapter shall be conducted in

accordance with the provisions of this Section.

(B) Notice of Public Hearing. The Planning Department shall publish and shall provide the party

who requested a hearing notice of the Planning Commission hearing at least fifteen (15) calendar days in

advance of the date of the hearing. The hearing shall be held within sixty (60) calendar days of the date

on which the request for hearing was filed.

(C) Public Hearing Procedures. Planning Commission hearings shall proceed in the following

manner:

(1) The Planning Department shall provide copies of any application or request, supporting

documents, and any documents relating to the challenged decision or action. Planning Commission

members may ask questions of the staff.

(2) The party who requested the hearing may submit written documents or materials in response to

the Department's recommendation, decision or action. Planning Commission members may ask

questions of the party who requested the hearing.

(3) Members of the public may offer comments on the proposal for consideration by the Planning

Commission. Questions or comments from the public shall be addressed to the Planning Commission

and directed by the Chair of the Commission to staff or the party that requested the hearing, at the

discretion of the Chair.

(4) Response or clarifying statements by the Department and the party that requested the hearing.

(5) Closing of the evidentiary portion of the hearing and deliberation on the proposal by the

Planning Commission.

(D) Public Record. The Planning Commission shall make a written or audio record of all hearings.
(E) Basis of decision. The Planning Commission shall review the record of the hearing and the

documents submitted at the hearing, and shall base its decision upon such record, applying the

provisions of the Swinomish Code and of Federal law and considering the best interests of the Tribe.

(F) Written Decision. The Planning Commission shall issue its decision in writing. Copies shall be

provided to the Planning Department and the party requesting the hearing, and shall be available for

public inspection and copying at reproduction cost. The decision shall be issued within thirty (30)

calendar days of the date of the hearing.

[History] Ord. 239 (08/02/05).

19-04.580 Appeals of Planning Commission Decisions.

(A) Any party aggrieved by a decision of the Planning Commission may appeal that decision to the

Senate by filing a written notice of appeal within thirty (30) calendar days from the date of notice of the

decision; provided, however, that this Section is not applicable to recommendations made by the

Planning Commission to the Senate.

(B) The Senate shall make a decision on appeal based on the administrative record of the

proceedings before the Planning Commission. The Senate shall not receive or consider any additional

evidence not contained in the administrative record of the proceedings before the Planning

Commission, and shall not consider any issue that was not raised by the appealing party in the

administrative proceedings before the Planning Commission. The Senate shall issue a decision within

sixty (60) calendar days of the date on which the notice of appeal was filed.

(C) The Senate shall affirm the decision of the Planning Commission unless the appealing party

demonstrates to the Senate both (1) and (2) below:

(1) The decision of the Planning Commission is either:

(a) Contrary to Swinomish or Federal law; or
(b) Arbitrary or capricious; or

(c) Not supported by substantial evidence in the record of proceedings held before the Planning

Commission; or

(d) Not in the best interests of the Tribe; and

(2) The appealing party has been or will be substantially prejudiced by the challenged action.

(D) If the Senate determines that the aggrieved party has met the burden set forth in Subsection

(C)(1) and (2), then the Senate, in its discretion, may issue a decision on the merits or may send the

matter back to the Planning Commission for further proceedings in accordance with the Senate's ruling.

[History] Ord. 239 (08/02/05).

19-04.590 Appeals of Senate Decisions.

(A) Any party aggrieved by a decision of the Senate pursuant to this Chapter may appeal such

decision to Tribal Court within thirty (30) calendar days from the date of notice of the decision. Any

appeal to the Tribal Court shall be in writing and shall identify the name of the party petitioning for

review, the interest of the petitioning party in the decision appealed from, and shall name as

respondent only the Planning Director, in his or her official capacity.

(B) The review by the Tribal Court shall be limited to the evidentiary record made in the

administrative proceedings held before the Planning Commission. The Department may charge an

appealing party the reasonable costs of preparing copies of the administrative record or of transcribing a

recording of a hearing for the Tribal Court and for the appealing party.

(C) The Tribal Court shall not receive or consider any additional evidence not contained in the

administrative record of the proceedings before the Planning Commission. The Tribal Court shall not
consider any issue that was not raised by the appealing party in the administrative proceedings before

Planning Commission and before the Senate.

(D) The Tribal Court review shall be conducted by the Court, without a jury. The review shall be in

accordance with those provisions of the Swinomish Rules of Civil Procedure that are determined to be

applicable by the Tribal Court.

(E) Any appeal from a decision of the Tribal Court shall be filed and adjudicated in accordance with

the Swinomish Rules of Appellate Procedure.

(F) The review by the Swinomish Tribal Court of Appeals shall be limited to the evidentiary record

made in the administrative proceedings held before the Planning Commission. The Court of Appeals

shall not consider any issue that was not raised by the appealing party in both the administrative

proceedings before the Planning Commission and the Senate and in the record of proceedings before

the Tribal Court.

(G) The Tribal Court and the Court of Appeals shall affirm the decision of the Senate upon review

unless the appealing party demonstrates to the Court both (1) and (2):

(1) The decision of the Senate either:

(a) Is contrary to Swinomish or Federal law;

(b) Is arbitrary or capricious; or

(c) Is not supported by substantial evidence in the record of proceedings held before the Senate;

and

(2) The appealing party has been or will be substantially prejudiced by the challenged action.
(H) If the Court determines that the aggrieved party has met the burden set forth in Subsection

(G)(1) and (2), then the Court shall reverse the decision appealed from and shall remand the matter to

the Senate for further proceedings in accordance with the Court's ruling. The Senate, in its discretion,

may send the matter to the Planning Commission for further proceedings in accordance with the Court's

ruling. The Tribal Court and the Court of Appeals shall not have authority to issue a permit, impose a

penalty or to grant an exemption, exception or a variance under this Chapter, and shall not have

authority to grant any relief other than an order reversing the decision appealed from and remanding

the matter to the Senate for further proceedings.

(I) The decision of the Court of Appeals shall be final, and is not subject to further review.

[History] Ord. 239 (08/02/05).

19-04.600 Time and Finality.

(A) The date of notice of any decision shall be the date on which the decision is mailed by the body

making the decision to the last known address of the applicant. The date of notice shall be stated in the

decision.

(B) All time periods set forth in Sections 19-04.560 to 19-04.590 shall be calculated in accordance

with Rule 3-02.080(A), "Computation and Extension of Time", of the Swinomish Rules of Civil Procedure.

(C) Any decision issued by any person or body under this Chapter shall inform the recipient of any

right to request a hearing or to appeal that is provided by this Chapter, of the procedure for requesting a

hearing or filing an appeal, and of the time period in which such a request for hearing or notice of

appeal must be filed.

(D) If a decision or action of the Department, Planning Commission, Senate, or Tribal Court is not

appealed within the time period set forth in this Subchapter, then that decision is final and conclusive,

and is not subject to further review.
[History] Ord. 239 (08/02/05).

19-04.610 Tribal Administrative Remedies and Tribal Court.

All cases or controversies arising under the terms and provisions of this Chapter shall be heard only in

the Swinomish Tribal Court, and only as provided in this Subchapter. An applicant or other aggrieved

party must exhaust any and all administrative remedies provided in this Chapter before seeking review

in Tribal Court.

[History] Ord. 239 (08/02/05).

19-04.620 Sovereign Immunity.

The sovereign immunity of the Tribe is not in any way waived or limited by this Chapter, or by any

appeal commenced pursuant to this Chapter, and nothing in this Chapter shall constitute or be

construed as a waiver of the sovereign immunity of the Tribe. Such sovereign immunity shall extend to

the Tribe, the Senate, the Planning Commission, the Department, the Director, all tribal officials,

employees, staff, and agents, as to all actions taken in, or concerning, the administration or

enforcement of this Chapter, and as to all actions taken pursuant to any authority of any action, decision

or order authorized by this Chapter.

[History] Ord. 239 (08/02/05).