Title 19, Chapter 2 Page 1 

### Title 19

– Environmental Protection
Chapter 2

– Clean Air Act

Sec.

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 Pub lic Hearings

Subchapter IV

- Enforcement

19

- 02.190 Enforcement

19

- 02.200 Penalties

19

- 02.210 Damages

Subchapter V

– Appeals

19

- 02.220 Appeals of Department Decisions

19

- 02.230 Tribal Administrative Remedies and Tribal Court

19

- 02.240 Sovereign ImmunityTitle 19, Chapter 2 Page 2 Subchapter VI

– Repealer, Severability and Effective Date

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Repealed or Superseded: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 Arti cle VI, Sections 1(a), (l), 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 pr ovisions 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.Title 19, Chapter 2 Page 3 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:

(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

propa gation, 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 Pollu tant” 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.

(7) “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).

(8) “Co mmission” or “Planning Commission” means the Planning Commission of the Swinomish Indian Tribal Community or its authorized designee.

(9) “Department” or “Planning Department” means the Swinomish Office of Planning and Community Development.Title 19, Chapter 2 Page 4 (10) “ Director” me ans 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.

(12) “Exti nguished” 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

catchin g 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 divi ded 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, ag encies, 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.Title 19, Chapter 2 Page 5 (24) “Senate” means the Swinomish Indian Senate, the governing body of the Swinomish Indian Tribal Community.

(25) “Stru cture” 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 recognize d 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 we re 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 her eby 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:

(1) Section 324: Fees;

(2) Section 502: Outdoor Burning;

(3) Section 504: Agricultural Burning;Title 19, Chapter 2 Page 6 (4) Sections 600

– 603: Objectives and Planning Criteria;

(5) Sections 113

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

(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 (9/3/03), Ord. 36 (2/1/77).

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 (9/3/03), Ord. 36 (2/1/77).

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 hour s.

(C) From time to time, the Department may recommend changes in the fee scheduleTitle 19, Chapter 2 Page 7 for Senate approval.

[History] Ord. 177 (9/3/03).

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 per son shall commence or continue an open burn within the Reservation unless such open burn:

(1) Is a ttended at all times;

(2) Is c onducted 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;

(5) Burns only materials that have been separated from the grass or peat layer as much as p racticable;

(6) Is capable of being immediately extinguished;

(7) Is not allowed to smolder; and

(8) 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 o f 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;Title 19, Chapter 2 Page 8 (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 w hat is necessary to start a fire;

(j) Lumber or timbers treated with preservatives;

(k) Construction debris or demolition waste;

(l) 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 burn 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.

(2) A training fire containing prohibited materials may be permitted by the Department pursuant to Section 19

- 02.120, provided that such burnTitle 19, Chapter 2 Page 9 complies with all other provisions of this Chapter, other applicable provisions of Tribal law, and applicable pro visions 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

m onoxide, 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

- 02.100 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 measur ed 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 i ndicate 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 d iscretion, 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, 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; andTitle 19, Chapter 2 Page 10 (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 op en 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 nu mber 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 respo nsible for conducting the proposed open burn;

(4) A plat or other map:

(a) Showing the area over which the proposed burn would be conducted;

(b) Showing the location of the proposed open burn in relation to property lines and vehicle access to the property; andTitle 19, Chapter 2 Page 11 (c) 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:

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

(2) The anticipated effects of the proposed burn;

(3) Current and projected air quality conditions; and

(4) 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.

(A) A special use permit is required for:

(1) Training fires, including but not limited to training fires containing any prohibited materials; andTitle 19, Chapter 2 Page 12 (2) Agricultural burning.

(B) Any person who commences an open burn within the Reservation requiring a speci al 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 b e 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

- 02.11 0(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 prop osed to be burned.

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

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

(2) The anticipated effects of the proposed burn;

(3) Current and projec ted air quality conditions; and

(4) The anticipated cumulative effects of the proposed burn and other

scheduled burns in the area.

(E) The Department may issue a special use permit if it determines that the proposed open burn:

(1) Will not cause an adverse impa ct on Reservation air quality, including but not limited to an exceedence of any applicable Tribal or Federal air quality standard;Title 19, Chapter 2 Page 13 (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 denia l 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 Department shall publish the fees in a fee schedule. A copy of the fee schedule shall be marked and designated as such, place d 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 (9/30/03)).

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:

(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 burn 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 mayTitle 19, Chapter 2 Page 14 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 bur n:

(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 qualif

ied 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 De partment, 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, ta rs, 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 S ection 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

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 permittee employ a high volume fan (for example, a fan ca pable 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; andTitle 19, Chapter 2 Page 15 (2) If two or more burn piles are permitted to be burned at the same site, the permittee not ignite t he second or subsequent burn pile(s) until previously

ignited burn piles are 75% or more consumed.

19

- 02.160 Burn Notification and Inspection.

For all permitted burns, the permittee 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 p rior to commencing an open burn, and during regular business hours, notify Fire Dispatch of his or her intent to commence an open

burn.

Subchapter III

– Public Involvement

19

- 02.170 Public Information

.

The Department shall institute a program desig ned 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. 307 (3/6/12);

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 (3/6/12);

Subchapter IV

– Enf orcement

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 activiti es 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 theTitle 19, Chapter 2 Page 16 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 immed iately 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:

(i) Cease or abate the activity causing the violation;

(ii) 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 na ture, 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, any orders revoking a permit,

or to cease and abate violating activity shall remain in effect until rescinded by a written appeals decision.

(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 (3/6/12).

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 thanTitle 19, Chapter 2 Page 17 $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 effec t 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 re lated to environmental protection or land use;

(3) The staff time required to correct the violation;

(4) 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 cea se the violation;

(b) Whether the responsible party took actions to correct the violation as quickly as feasible;

(c) 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.

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; orTitle 19, Chapter 2 Page 18 (B) Double the harm the Tribe sustained due to the person’s violation of this Chapter or an applicable permit condition, as determined b y 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 Departme nt.

Subchapter V

–

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 or der 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 (3/6/12).

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 (3/6/12).

19

- 02.240 Sovereign Immunity.

The sovereign immunity of the Tribe is not in any wa y 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, t he 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 (3/6/12).Title 19, Chapter 2 Page 19 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 ordinan ce 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 (3/6/12); Ord. 179 (9/30/03).

19

- 02.260 Severability.

If any provision of this Chapter or its application to any person or circumstances is he ld 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. 30 7 (3/6/12).

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 (3/6/12).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 notconsider 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).