MEMORANDUM OF AGREEMENT BETWEEN THE GILA RIVER INDIAN COMMUNITY'S DEPARTMENT OF ENVIRONMENTAL QUALITY AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION IX REGARDING DELEGATION OF NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

I. INTRODUCTION This Memorandum of Agreement (hereinafter "Agreement") establishes procedures to facilitate delegation to the Gila River Indian Community Department of Environmental Quality ("GRIC-DEQ") of the authority to implement and enforce federal rules, emission standards, and requirements promulgated under Section 112 of the Clean Air Act, 42 U.S.C. 

## 5 74 12 (hereinafter referred to as the "Section 112 federal rules"). This Agreement further sets forth the manner in which the United States Environmental Protection Agency, Region 

### IX ("EPA"), and GRIC-DEQ will coordinate their respective responsibilities to ensure expeditious delegation of the Section 112 federal rules to GRIC-DEQ. EPA and GRIC-DEQ will review this Agreement as the need arises. Pursuant to Section 1 12, EPA promulgates national emission standards for hazardous air pollutants, i.e., the Section 112 federal rules. Under Section 112(1), a tribal authority may develop and submit to EPA for approval a program for the implementation and enforcement of promulgated Section 112 federal rules, provided certain specified approval criteria have been met. On November 26, 1993, EPA promulgated regulations, codified at 40 C.F.R. Part 63, Subpart E (hereinafter "Subpart E"), to provide guidance useful to state, local, and tribal authorities in developing programs for submittal under Section 112(1). Subpart E was later revised on September 14, 2000. See 65 Federal Register 55809. While a tribal authority's submission of rules or programs under 112(1)is voluntary, a tribe seeking to implement and enforce some provisions of its own program in lieu of a Section 112 federal rule needs to obtain EPA approval under Subpart E. Once granted approval, the approved tribal rules or programs would be federally enforceable and would substitute for the otherwise applicable Section 112 federal rule within that tribe's jurisdiction. Regardless of whether a tribal rule or program is approved or disapproved, nothing shall prohibit EPA from enforcing any applicable emission standard or requirement under Section 112. See Section 112(1)(7) and 40 C.F.R. 

## 5 63.90(d)(2).Subpart E includes several options for requesting approval of tribal rules or programs. Under one ofthese options, a tribe may request delegation of Section 112 federal rules aspromulgated without changes. To obtain approval under this option, a tribe need only meet the criteria in 40 C.F.R. $63.91. This Agreement establishes proceduresto facilitate this delegationprocess. 11. POLICY STATEMENT EPA and GRIC-DEQ are responsible for ensuringthat their respective obligations under this Agreement are met. In summary, GRIC-DEQ 

### has the responsibilityto incorporatethe Section 112 federalrules into tribal codesofregulationby reference and to initiate the delegation process by submittingan application that conforms with Subpart E; while EPA has the responsibilityto provide GRIC-DEQ with informationregarding upcoming Section 112 federal rules and to review GRIC-DEQ's applications. EPA and GRIC-DEQ agree to maintain a high level of cooperation and coordinationbetween their respective sMs 

### in a partnership to assure successful and effective delegation ofthe Section 112 federalrules. 111. INFORMATION SHARING A. GENERAL EPA and GRIC-DEQ agree to participate in conference calls and other exchanges ofinformation in written form, asneeded, to discuss legal, policy, resource, or technical issues related to delegationof Section 112 federalrules. 

### B. EPA 1. EPA will update GRIC-DEQ periodically on important developmentsunder Section 112, including progress on the proposal and promulgation of Section 112 federal rules and development of EPA policies. EPA agrees to provide GRICDEQ with the names, addresses, and phone and fax numbers ofthe EPA contacts for each Section 112 federal rule, aswell as any informationregarding delegation. 2. EPA agrees, when reasonably foreseeable,to communicate to GRIC-DEQ that the implementationand enforcement of any new Section 112 federal rule may require additional legal, technical, or financial resources on the part of GRIC-DEQ. 3. EPA will provide GRIC-DEQ with any informationEPA may have collected regarding sources within GRIC-DEQ's jurisdiction that may be subjectto a Section 112federalrule. C. GRIC-DEQ 1. GRIC-DEQ will work cooperativelywith EPA to identifl all sources within GRIC-DEQ's jurisdiction that may be subjectto a Section 112 federal rule.

### 2. GRIC-DEQ agrees to notify EPA in advance of any proposed program changes that may affect GRIC-DEQ's ability to implement or enforce any Section 112 federal rule for which GRIC-DEQ has received delegation or will request delegation. Program changes of concern include modification of GRIC-DEQ's legal authorities (e.g., statutes, regulations, orjudicial or legislative actions affecting those authorities), modification ofresource levels, modification of implementation schedules, etc., that were part of any approval under Section 112 or Subpart 

### E. 3. GRIC-DEQ understands that EPA may request GRIC-DEQ to provide the information or the demonstrations referenced in 

### 40 C.F.R. 

## 5 63.96(a) (Review And Withdrawal Of Approval). IV. DELEGATION PROCEDURES A. GRIC-DEQ 1. As noted above, GRIC-DEQ intends to obtain the regulatory authority necessary to accept delegation ofthe Section 112 federal rules by incorporating these rules into tribal codes of regulation by reference. For the Section 112 federal rules for which GRIC-DEQ will seek delegation, GRIC-DEQ agrees to incorporate the Section 112 federal rules by reference into the GRIC Air Quality Management Program Plan as expeditiously as possible. 2. For each Section 112 federal rule (or group ofrules) for which GRIC-DEQ will seek delegation, GRIC-DEQ agrees to submit a letter as soon as practicable (if possible, immediately after the relevant tribal regulatory action is complete or within six months following such action) to the Director of EPA Region IX's Air Division requesting delegation of the Section 112 federal rule. GRIC-DEQ shall include with this letter, proof that GRIC-DEQ has obtained the necessary regulatory authorityto fblly implement and enforce the Section 112 federal rule for which it is seeking delegation. Thisproof shall include a certification of adoption and a copy of the regulatory provisions by which the Section 112 federal rule was adopted. 

### B. EPA 1. In response to a letter requesting delegation of a Section 112 federal rule, EPA agrees to expeditiouslyreview the request and respond in writing 

### as to whether the delegation is approved or disapproved. 2. Ifthe delegation request is approved, the effective date of the delegation ofthe Section 

### 112 federal rule will be the date when the Director of EPA Region IX's Air Division signs the approval letter.

### 3. Periodically, EPA will publish in the Federal Register an updated list of the Section 112 federal rules that have been delegated. 

### V. POST-DELEGATION A. EPA 1. After delegation of a Section 112 federal rule, EPA agrees to continue to provide assistanceto 

### GRIC-DEQ in the implementationor enforcement of the Section 112 federal rule. 2. Pursuant to 40 C.F.R. 

## $4 63.9(a)(4)(ii) and 63.10 (a)(4)(ii), EPA hereby waives the requirements that notificationsand reports be submitted 

### to EPA for any Section 112 federal rules for which GRIC-DEQ 

### has received delegation (i.e., upon delegation, affected sourcesneed only submit required notificationsand reports to GRIC-DEQ). EPA reserves the right to reevaluate the appropriateness of such a broad waiver in the event ofprogrammatic changesor on a source category basis. B. GRIC-DEQ 1. GRIC-DEQ understands that for any Section 112 federal rule for which it requests and 

### receives delegation, it will be the primary implementing agency and will be responsible for implementing and enforcing the Section 112 federal rule independent of and in addition to the conditions of any affected source's operating permit under 40 C.F.R. Part 70. 2. GRIC-DEQ agrees to retain records required by Section 112 federal rules, and make records availableto EPA upon request. 3. GRIC-DEQ understands that certain authorities are retained by EPA and are not delegableto GRIC-DEQ. See, for example, 40 C.F.R. 

## $5 63.90(d) and 63-91 (g)(2). In general, authoritiesthat are not delegable include those functions that require rulemaking in the Federal Register or those situationswhere federal oversight is the only way to ensure national consistency in the application of the standards. 4. GRIC-DEQ agrees that delegationof 40 C.F.R. Part 63, SubpartA will include the "Category I" authorities listed in 40 C.F.R. 

## 4 63.91(g)(l)(i). EPA retains the authority to make decisionsaccording to the "Category 11" authorities listed in 40 C.F.R. 

## 4 63.91(g)(2)(ii). 5. GRIC-DEQ agreesto forward to EPA a copy of all decisionsmade pursuant to "Category I" authorities (as mentioned in 40 C.F.R. $ 

### 63.91(g)(l)), as well as any determinationsmade pursuant to 40 C.F.R 

## $5 63.6(i) or 63-50. In addition, GRIC-DEQ agreesto provide EPA with a copy of any requests sent to GRIC-

### DEQ for minor or intermediate alternativesto MACT standard test methods or monitoring, prior to approval or disapproval by GRIC-DEQ.

VI. DISCLAIMERS 1. 

### This Agreement is for the benefit ofEPA and GFUC-DEQ. This Agreement does not create any rights, duties, or obligations,implied or otherwise, in any third parties. 2. 

### As stated above, nothing shall prohibit EPA from enforcing any applicable emission standard or requirement under Section 112.



### This Agreement shall become effective when signed by all parties.

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