### MEMORANDUM OF AGREEMENT BETWEENTHE GILA RIVER INDIAN COMMUNITYAND THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGARDING CRIMINAL ENFORCEMENT OF THE TRIBALIMPLEMENTATION PLAN PURSUANTTO 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 ProtectionAgency (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 Communityhas delegatedto the Gila River Indian Community Department of Environmental Quality (GRIC DEQ) the authority to regulate the reservation environment;and 

### WHEREAS, GRIC DEQ has exercisedthis grant of authority and actively regulates the quality ofthe Tribe's air, water and environmental health; and 

### WHEREAS, on or about February 12, 1998, EPA promulgated a final rule at 63 F.R. 7271 implementing the mandate ofthe Clean Air Act (CAA) to promulgate regulations specifying those provisions of the Act for which it is appropriate to treat Indian Tribes in the same manner as States;and 

### WHEREAS, Subpart A ofpart 49 of Title 40 ofthe 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 aboutNovember 17,2006, GRIC DEQ, acting on behalf ofthe 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 enforcementresponsibility and for the tribe to provide potential investigative leadsto EPA or any other appropriateFederal agencies;andWHEREAS, 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 18which setsforth federal crimesand criminalprocedure; 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 individualwho has been found guilty of a felony, or a misdemeanorthat results in death, shall be $250,000 (two hundred and fiftythousand 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 (fivethousand 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 RightsAct of 1968;and WHEREAS, the United States Supreme Court held in Oliphant v. Sucjuamish, 435 U.S. 191 (1978), that Indiantribes lack criminaljurisdiction overnon-Indians; and WHEREAS, EPA seeks to assure that criminal violations are enforceable against all violators, includingnon-Indians; and WHEREAS, EPA's Criminal Investigation Division (CID) seeks to investigate allegations of 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 ofAgreement provides the means by which GRTC DEQ shall refer potential criminal violations ofthe CAA program to CID; and WHEREAS, this MOA satisfies the requirements of40 CFR49.7 and 49.8: NOW THEREFORE,the parties agree as follows:ARTICLE 

### 1: LIASONS AND COMMUNICATIONS. A. Designation ofPersonnel. 

### 1. CID Region 9Liaison. The Special-Agent-in-Charge (SAC)for Region 9 will designate a CID agent to fulfill the roles and responsibilitiesofthis MOA. 

### 2. Community Criminal EnforcementLiaison. The Community will designate a Community EnforcementLiaisonto fulfill the roles and responsibilitiesof this MOA. B. Changes in Personnel. It shall be the obligationofthe SAC and the Communityto notify one anotherofchanges in the personnel designated under this Agreement. In addition to any other form of notificationprovided, written notification shouldbe provided within five business days of a changeinpersonnel. 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 subjectto disclosureunder 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 outsidethe 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 consultationwith EPA, return or destroy any Covered Informationthat it isunable 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 tobelieve that a suspected violationof the TIP may have been committed knowingly or where a suspected negligent violationhas resulted in death or seriousbodily injury.B. Defmitions. 1. TribalImplementation Plan. For purposes of this MOA, the term TIP shall refer to all requirements of the TIP that EPA has approved aspart ofthe 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 NotificationRegarding Suspected Criminal Violations. Within 24 hours from the time that an emergency (as described below) is discovered, the Community shallcontact EPA as follows: 1, Imminent Threat to Human Health orthe Environment. If a suspected violation ofthe TIP potentially constitutesan imminent threat to human health or the environment, the Community shall contact EPA's National Response Center at 

### 1 (800) 424-8802. 

### 2. Threat ofFlbht orEvidentiarv 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 immediatelynotifyby telephone the CID Region 9Liaison.

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 aspracticable, the Community shall notifyby telephone the CID Region 9Liaison.

### 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 informationmay 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 informationfor)any suspectsandorwitnesses; 

### 2. The statutoryandorregulatory provisionsbelieved to have been violated; 3. The compliance history of suspected individualor facility; and 

### 4. A descriptionof any enforcement actions the Community has taken or intendsto take. 

### D. Additional assistance. After providing the initial investigative lead, the Community shall, when requested, continue to assist CID in collecting additional evidenceto supportthe 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: 

### MISCELLANEOUSPROVISIONS. A. Reservation ofRi~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 oftheApseement. ThisMOA may be modified onlyby written instrumentand signatureof all the parties. 

### C. EffectiveDate. This Agreement shallbecome effectiveonthe date it is signedby all the parties.

### D. OngoingCommunications. 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 communicationsprocess either verbally or in writing at any time. E. Appropriations. All commitmentsmade in this MOA are subjectto the availabilityof 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 servicesrendered 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 applicablelaws, 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 signedby representativesfor the parties.

Date: 

# 4/3?fl$T

~ila-fiver Indian Community Department dEnvironrnenta1 QualityDate: 

# ((//:/'ox

Date: 

# ~o-I~-o/S

Air Division~irector Region 

### IX, U.S.Environmental ProtectionAgency



# . r

*icholas 

### J. Torres 

# P----- Special Agent 

### in Charge 

### CID SanFrancisco Area Office, Region

### IX U.S.Environmental ProtectionAgency