MEMORANDUM OF AGREEMENT 

BETWEEN THE GILA RIVER INDIAN COMMUNITY AND 

THE U.S. ENVIRONMENTAL PROTECTION AGENCY 

REGARDING CRIMINAL ENFORCEMENT OF THE TRIBAL IMPLEMENTATION 

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

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

U.S. Environmental Protection Agency (EPA) is entered into on this /&day ofdIurM&i008. 

WHEREAS, the Gila River Indian Community (Community) is a duly sovereign, federally 

recognized Tribal entity that is governed by the Gila River Indian Community 

Council; and 

WHEREAS, the Community has delegated to the Gila River Indian Community Department of 

Environmental Quality (GRIC DEQ) the authority to regulate the reservation 

environment; and 

WHEREAS, GRIC DEQ has exercised this grant of authority and actively regulates the quality 

of the Tribe's air, water and environmental health; and 

WHEREAS, on or about February 12, 1998, EPA promulgated a final rule at 63 F.R. 7271 

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

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

Tribes in the same manner as States; and 

WHEREAS, Subpart A of part 49 of Title 40 of the Code of Federal Regulations sets forth the 

CAA provisions for which it is appropriate to treat Indian Tribes in the same 

manner as States, including primary enforcement responsibility for the CAA; and 

WHEREAS, on or about November 17,2006, GRIC DEQ, acting on behalf of the Community, 

applied to EPA for an eligibility determination under the provisions of 40 CFR 

Part 49 for the purpose of developing and implementing a federally enforceable 

Tribal Implementation Plan (TIP); and 

WHEREAS, 40 C.F.R. 49.7(a)(6) provides that where applicable CAA or implementing 

regulatory requirements mandate criminal enforcement authority, an application 

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

C.F.R. 49.8; and 

WHEREAS, 40 CFR 49.8 provides that, to the extent that an Indian tribe is precluded from 

asserting criminal enforcement authority, the tribe and the EPA Region shall enter 

into a Memorandum of Agreement providing for the United States to exercise 

primary criminal enforcement responsibility and for the tribe to provide potential 

investigative leads to EPA or any other appropriate Federal agencies; and 
WHEREAS, Section 113(c) of the CAA provides that any person who violates one of the 

provisions enumerated therein shall, upon conviction, be punished by a fine 

pursuant to Title 18 which sets forth federal crimes and criminal procedure; and 

WHEREAS, subsections (I), (2) and (5) of Section 113(c) provide that any person who 

knowingly violates one of the provisions enumerated therein shall, upon 

conviction, be subject to imprisonment for a term not to exceed, based upon the 

conviction, five years, two years, or fifteen years; and 

WHEREAS, 18 U.S.C. 3571 provides that the maximum fine which may be imposed upon an 

individual who has been found guilty of a felony, or a misdemeanor that results in 

death, shall be $250,000 (two hundred and fifty thousand dollars); and 

WHEREAS, the Indian Civil Rights Act of 1968, 25 U.S.C. 1302, provides that tribal 

governments may not impose sentences that exceed one year's imprisonment 

andlor a fine not to exceed $5,000 (five thousand dollars); and 

WHEREAS, the maximum criminal penalties provided for under the CAA may exceed the 

criminal penalties which tribal governments may impose pursuant to the Indian 

Civil Rights Act of 1968; and 

WHEREAS, the United States Supreme Court held in Oliphant v. Sucjuamish, 435 U.S. 191 

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

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

including non-Indians; and 

WHEREAS, EPA's Criminal Investigation Division (CID) seeks to investigate allegations of 

willfbl violations as early as possible in order to ensure that the appropriate 

penalties may be pursued; and 

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

the Tribe's jurisdiction; and 

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

which GRTC DEQ shall refer potential criminal violations of the CAA program to 

CID; and 

WHEREAS, this MOA satisfies the requirements of 40 CFR 49.7 and 49.8: 

NOW THEREFORE, the parties agree as follows: 
ARTICLE 1: LIASONS AND COMMUNICATIONS. 

A. Designation of Personnel. 

1. CID Region 9 Liaison. 

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

roles and responsibilities of this MOA. 

2. Community Criminal Enforcement Liaison. 

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

responsibilities of this MOA. 

B. Changes in Personnel. 

It shall be the obligation of the SAC and the Community to notify one another of changes 

in the personnel designated under this Agreement. In addition to any other form of 

notification provided, written notification should be provided within five business days of 

a change in personnel. 

C. Confidentiality of Communications. 

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

States concerning investigations or enforcement matters covered by this Agreement 

(hereinafter, Covered Information) will be treated as confidential and enforcementsensitive information not subject to disclosure under the Federal Freedom of Information 

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

confidentiality of all Covered Information and to the extent permitted by law, shall not 

disclose Covered Information to anyone outside the Federal or Community governments 

without the consent of both parties except as part of an enforcement proceeding. If the 

Community is unable to protect Covered Information from disclosure, the Community 

will notify EPA before EPA shares any Covered Information with the Community. To 

the extent permitted by Community law, the Community will, in consultation with EPA, 

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

ARTICLE 2: REFERRAL OF POTENTIAL CRIMINAL VIOLATIONS. 

A. Potential Criminal Violations. 

The Community shall contact the CID Region 9 Liaison in the manner described in 

Article 3 whenever it has reason to believe that a suspected violation of the TIP may have 

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

or serious bodily injury. 
B. Defmitions. 

1. Tribal Implementation Plan. 

For purposes of this MOA, the term TIP shall refer to all requirements of the TIP that 

EPA has approved as part of the Community's application for primary CAA authority. 

2. Communitv. 

The term "Community" means the Gila River Indian Community, including the Gila 

River Indian Community Department of Environmental Quality and any other 

Community governmental entities to which the Gila River Indian Community has 

delegated regulatory and/or law enforcement authority. 

ARTICLE 3: REFERRAL PROCESS. 

A. Emergency Notification Regarding Suspected Criminal Violations. 

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

Community shall contact EPA as follows: 

1, Imminent Threat to Human Health or the Environment. 

If a suspected violation of the TIP potentially constitutes an imminent threat to human 

health or the environment, the Community shall contact EPA's National Response 

Center at 1 (800) 424-8802. 

2. Threat of Flbht or Evidentiarv Peril. 

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

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

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

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

B. Initial Notification of Suspected Criminal Violations that Do Not Pose Ememencv 

Circumstances. 

Where the Community has reason to suspect a knowing violation may have occurred, or 

that a negligent violation has resulted in death or serious bodily injury, and the 

circumstances described in paragraph A above are not present, as soon as practicable, the 

Community shall notify by telephone the CID Region 9 Liaison. 
C. Supplementarv Information. 

Within 5 business days of the discovery of any suspected knowing violation or any 

violation resulting in death or serious bodily injury (whether notified pursuant to 

paragraph A or B above), the Community shall transmit by letter or in other writing any 

supplementary information that the Community may have pertaining to the suspected 

violation. Such information may include the following: 

1. A detailed description, including date, time and location, of the events and 

circumstances that constitute the suspected violation, together with the identity of 

(and contact information for) any suspects andor witnesses; 

2. The statutory andor regulatory provisions believed to have been violated; 

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

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

D. Additional assistance. 

After providing the initial investigative lead, the Community shall, when requested, 

continue to assist CID in collecting additional evidence to support the investigation, and 

will make available inspectors or other employees of the Community who witnessed the 

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

violation. 

ARTICLE 4: MISCELLANEOUS PROVISIONS. 

A. Reservation of Ri~hts. 

This MOA is intended solely for the purpose of facilitating intergovernmental cooperation 

between the parties. This MOA does not change or amend any preexisting agreements 

between the parties. Further, nothing in this MOA affects or shall be deemed to affect the 

jurisdiction or governmental authority of the Community or EPA. This Agreement creates 

no rights in third parties, including, but not limited to, the right of judicial review. 

B. Modification of the Apseement. 

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

C. Effective Date. 

This Agreement shall become effective on the date it is signed by all the parties. 
D. Ongoing Communications. 

Consistent with applicable law and policy and Article 1, paragraph C, and subject to 

prosecutorial review and consent, CID will develop, in consultation with the Community, 

a case-specific process for ongoing communication with respect to each matter that has 

been referred under Articles 2 and 3. This process may be reduced to writing. Either 

party may waive the requirement for a formal communications process either verbally or 

in writing at any time. 

E. Appropriations. 

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

and each party's budget priorities. Nothing in this MOA, in and of itself, obligates EPA 

to expend appropriations or to enter into any contract, assistance agreement, or 

interagency agreement, or to incur a financial obligation to the Community. The 

Community agrees not to submit a claim for compensation for services rendered to EPA 

or another federal agency for activities it undertakes in carrying out this MOA unless 

such a claim is an eligible and allowable cost under a separate contract or assistance 

agreement that has been entered into between EPA and the Community in accordance 

with applicable laws, regulations and procedures. 

F. Authority. 

The authority to enter into this MOA is set forth in 49 C.F.R. 49.7 and 49.8. These 

regulations require, in relevant part, that EPA and the Community enter into a MOA 

which reflects a system in which the Tribe will refer criminal violations to EPA in an 

appropriate and timely manner. This MOA satisfies the foregoing conditions for EPA 

approval of the Community's TIP. 

IN WITNESS WHEREOF, this Agreement is signed by representatives for the parties. 

Date: 4/3?fl$T 

~ila-fiver Indian Community 

Department dEnvironrnenta1 Quality 
Date: ((//:/'ox 

Date: ~o-I~-o/S 

Air Division ~irector 

Region IX, U.S. Environmental Protection Agency 

. r 

*icholas J. Torres 

P----- 

Special Agent in Charge 

CID San Francisco Area Office, Region IX 

U.S. Environmental Protection Agency