### Memorandum ofAgreement Between the Southern Ute Indian Tribe and the U.S. Environmental Protection Agency Region 8 Regarding Criminal Enforcement ofthe Clean Air Actwithin the Exterior Boundaries ofthe Southern Ute Indian Reservation

This Memorandum ofAgreement is executed by the SOUTHERN UTE INDIAN TRIBE and the U.S. ENVIRONMENTAL PROTECTION AGENCY-REGION 8. 

### RECITALS WHEREAS, the Southem Ute Indian Tribe is a fcdt:rally recognized Indian tribe governed by the Southern Ute Indian Tribal Council; and 

### WHEREAS, the Tribe entered into an agreement with Colorado entitled 

### lnferxovernmentalAgreement Between the Southern Ute Indian Trihe and the State

# or Colorado ConcerningAir Quality Control on the Southern Ute Indian Reservation ("IGA") on December 13, 1999, to cstablish a single air quality program applicable to all lands within the exteriorboundaries ofthe Southern Ute Indian Reservation ("Reservation"); and 

### WHEREAS, Con!:.7fess adopt<.xi the Act ofOctober 18, 2004, Pub. 

### 1.. No. 108-336. 118 Stat. 1354 (,'Public Law 108-336") to provide ll)r the implementation ofair quality prognuns developed.in accordance with the IGA and for other purposes; and 

### WHEREAS, Public Law 108-336 authorizes the Administrator ofthe U.S. Environmental Protection Agency ("EPA") to treat the Tribe as a State for the purpose of any air program applications submitted to the Administrator by the Trihe undcr section 301(d) (42 U.S.c. 

### § 7601(d» ofthe Clean Air Act to carry out, in a manner consistent

.with the Clean Air Act, the lGA: and 

### WHEREAS, the EPA, pursuant to Section 301(d) ofthe Clean Air Act, 42 U.S.c. 

### § 7601 (d). and 40 C.F.R. Part 49 is authoriztxi to treat Indian tribes in a similarmanner as states for the purpose ofadministering certain provisions ofthe Clean Air Act; and 

### WHEREAS, the Tribe intends to apply to EPA fl)r treatment in a similar manner as a state ("TAS") for the purposeofadministering a tribal Clean Air Act Title V operating penuit program within the exterior boundaries o1'thc Reservation; and 

### WHEREAS, the Supreme Court has held that an Indian tribc may not exercise criminal jurisdictionovernon-Indians unless Congress has conferred that poweronthe tribe. and criminal sanctions that may be imposed by Indian tribes on Indians arc limited by the Indian Civil Rights Act of 1968, 25 U.S.C. 

### § 1302(7); and 

### WHEREAS, in the IGA, the Tribe and StateofC'oJorado agreed that "EPA will exercise criminal enforcementjurisdiction OWl" any persons on all lands within [the Southem UteIndian] Reservation boundaries for violations ofthe Reservation Air Program." IGA, Article X.8.2; § 24-62-101, C.R.S.; and WHEREAS, EPA regulations at 40 C.F.R. §§ 49.7(a)(6) and 49.8 allow approval of tribal TAS applications fiJr Clean Air Act programs including criminal enforcement components where theeligible Indian tribe seeking TAS enters into a Memorandumof Agreement ("MOA") with the appropriate EPA region, sctting fi.)rth a procedureby which the tribe will provide potential investigative leads to the federal government in an appropriate and timely manner under circumstances in which the tribe is precluded from asserting criminal enforcement authority; and WHEREAS, the Tribe and EPA-Region 8 desire to enter into this MOA in accordance with 40 C.F.R. § 49.8 and as cOlltemplated in the lGA. AGREEMENT NOW THEREFORE the parties agree as follows: ARTICLE J. Liaisons and Communications A. The f(lllowing individuals will be designatcd by the respective parties as being primarily responsible for fulfilling the duties ofthe respective parties pursuant to this MOA: I. For the Tribe: the Division Head ofthe Southern Ute Environmental Programs Division and the ChiefofPolice ofthe Southern Ute Tribal Police Department. 2. For EPA Region YJII: the

## em Denver Area Office Spccial Agent in Charge. B. The parties will treat all communications made pursuant to this MOA as confidential and sensitive enforcement int<.>nl1ation (hereinafter. Covered Information) and will not disclose any such communication except to the extent required by law or in the context ofan inspection. investigation, or law enfi)rcement orjudicial proceeding. The parties will take steps to ensure the confidentiality ofCovered Infbrmation and, to the extent permitted by law, shall not disclose Covered Infomlation to anyone ()Utside ofthe Federal or Tribal governments without the consent ofboth parties except as part ofan enforcement proceeding. Ifthe Tribe is unahle to protcct Covered lnfimnation from disclosure (except in the context of an inspection, investigation, or law cnf()rcemcnt orjudicial proceeding), the Tribe will notify EPA before EPA shares any Covered 111f()mlution with the Tribe. To the extent pennitted byTribal law. the Tribe will, in consultation with EPA. retum or dcstroy any Covered Infc.l1mation that it is unable to protect from disclosure. Similarly, ifEPA is unable to protect

2Covered lnfonnation from disclosure (except in the context ofajudicial proceeding), EPA will notifY the Tribe before the Tribe shares any Covered Information with EPA. To the extent pt.'l1TIitted hy tooerallaw, EPA 

### will, in consultation withthe Tribe, return ordestroy any Covered Infi)rmation that it 

### is unable to protect from disclosure. ARTICI.JE II. Notice of

### Suspected Criminal Violations 

### A. The Trihe will provide investigative leads in accordance with Article HI when the Tribe has reason to suspect that an Indian ornon-Indian (i.e

.. a person who is not an enrolled memberofan American Indian tribe or Alaska Native village recognized by the U.S. Department ofInterior Bureau ofIndian Affairs as a Federally Recognized Indian tribe) has committed an act oromission on the Reservation that is potentially punishable by a criminal penalty. as provided by Section 113(c) ofthe CleanAirAct, 42 U.S.C. § 7413(c). B. This MOA will not be construed to limit the enhHcementjurisdiction of 

### EPA. ARTICLE 

### HI. Procedure By 

### Which theTribe Will 

### NotifY the 

### Federal Government and 

### Submit Investigative Leads A. Whenevcr thc Tribe has reason to suspect the circumstances described in Article II, the Tribe will promptly (ideally. within 24 hours) notify the EPA Criminal Investigation Division (erD) Denver Area Office by tc!ephone (303-312-6134) ortelefax (303-312-6517) to provide initial investigative leads. B. After providing the initial invc.<;tigative lead. the Tribe will, when requested, continue to assist ClD in collecting additional evidence to support the invcstigation, and will make available inspectors orother employees oftheTribe who witnessed the suspected violations orwho are otherwise in the chain ofcustody for evidence ofthe violation. TheTribe will continue to assist in the investigation a') resources allow. ARTICLE IV. 

### Procedure By 

### \Vhich the EPA Will 

### Follow Up on**Invcsti~ativc** Leads A. EPA will carefully review every investigative lead provided hy the Tribe and will promptly (ideally within 30 days) notify the Tnhe ofEPA's intentiun to either (I) pursue the lead and conduct additional criminal investigation necessaryto support initiation ora prosecution or (2) decline to pursuethe lead ordiscontinue investigation ofthe lead. EPA shall endeavorto complete any additional investigation that is undertaken in a timely manner (i.e., within the time necessary for an effective prosecution
3to occur). Whenever EPA decides to dedine or discontinue investigation ofa lead, it will promptly communicate its reasons for doing so in writing to the Tribe. While nothing in this agreement may in any respect or under any circumstances be interpreted to limit EPA's cnfim.;ement discretion or otherwise create any right orexpectation, factors that may contributeto a decision to decline ordiscontinue investigation include but arenot limited to: (1) staleness ofthe evidence, (2) inability to identify and/or prosecute thetrue authors ofthe crime, (3) dift'iculty in demonstrating that the target(s) ofthe investigation had the legallyrequired mental state, (4) the absence o1'a clear violation oflaw, (5) lack ofproseeutorial interest or availability, and (6) the need to prioritize given limIted investigative resources. In the event that the Tribe disagrees with EPA's decision, it will notify the EPA-ClO SAC in writing ofthe areas ofdisagreement and EPA-ClO shall work in good faith with the Tribe to discuss and. if possible resolve, the arcas ofdisagreemenlo B. EPA shall notify the Tribc in writing ofits request for prosecutorial assistance from the United States Attorney for criminal prosecution under the Clean Air Act with respect to alleged offenses occurringonthe Reservation. EPA shall, at the request ofthe United States Attorney, make its personnel available to serve a..<; witnesses bcfclre grand orpetit jury in support ofthe development and prosecution orany Clean Air Act offenses occurring onthe Reservation. 

### C. Upon receipt from the United States Attorney, U.S. EPA CID Denver Area Office will, as authorized bythe United States attorney, provide a copy to the Tribe ofany letterdeclining to prosecute any allegc-d Clean Air Act otlcnseon the Reservation that was referred to the Unitt..xl. States Attorneyby EPA. In the absence ofauthorization from the U.S. Attorney to share any sueh letter, EPA shall provide written notice ofdeclination, including such explanation ofthebasis for declination as it is able and permitted to provide. ARTICLE V. Training and Education TheTribe and EPA agree that well trained ano knowledgeable air quality program stafTofthe Tribe is important in recognizingpotential criminal violations ofthe Clean Air Act. In that regard, EPA's OfticeofCriminal Entbrcemcnt, Forensics, and Training will atlord the Tribe priority in regional and national offerings ofthe tuition-free 

### Tribal Environmental Crime Investigation Training Program.

4

### ARTICLE VI. Miscellaneous Provisions A. This MOA defines in general tenns the basis on which the parties intend to cooperate. Any provision in it is void to the extent that it conflicts with or

### is inconsistent with applicable law, federal regulations, and federal policy. This MOA is neither a tiscal nor a funds obligation document. Nothing in this MOA obligates EPA orthe Tribe to expend appropriations orto enter into any contract, a'isistancc agreement or interagl.'11cy agreement, orto incur other financial obligations. The MOA does not exempt transactions between EPA and the Tribe from EPA policies governing competition tor assistance agreements and contracts. Any obligation orexpenditure offunds by EPA in furtherance ofthe goals of this MOA must be consistent with existing legal authorities. All obligations and expenditures offunds by EPA will he subject to the availability ofappropriations and EPA's discretion in makingbudgetary detenninations. All obligations and expenditures offunds bythe Tribe 

### will be subject to the availability ofappropriations and the Tribe's discretion in making budgetary determinations. Nothing in this MOA may be construed to give rise to a claim for compensation f(H services pcrl<mned to further the goals ofthis agreement. B. This MOA does not create any right orbenefit, substantive or procedural, enf()rceable by law or (,,'quity by a third party against the Tribe orEP1\, their ollicers oremployees, or any other person. This MOA does not direct or apply to any person otherthan the Tribe and EPA. C. Ifany provision ofthis MOA is detcnnined to be invalid or prohibited by law, that provision shall be inetlective onlyto the extent ofsuch invalidity or prohibition, without atlecting the validity ofthe remaining provisions ofthe MOA. TheTribe and EPA Region 

### Ragree to meet and negotiate in good faith to mnend this MOA in order to cure any sueh lcgal defect. D. This MOA will become effective on the date ofEPA's approval ofthe Tribe's treatment in a similar manner as a statc application. It may be modified or amended only through the written agreement ofboth parties. This MOA will continue in encct until terminated by the partil.'S. Either party may tenninate the MOA 

### by providing 90 days advance written noticeto thc other party. Tt--nnination ofthis MOA could lead to withdrawal ofEPA's approval ofthe 'rribe's Clean Air Act program. E. This MOA may be executed in one or more counterparts, each ofwhich shall be deemed an original, but all ofwhieh together shall constituteone and the same instrument.

5

### ARTICLE V1I. Signatures

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

- RE(;ION 8



## \

...

tt'

.•.4.--

...... 1**~.~....** .k ...•

_ .._ ...._....._ .. 

### Carol1Rushin, Acting Regional Administrator Date

Giement J. f1*6g!**""'"N~W** 

# , ._------_**~~(tnl** Ute Indian Tribal Council :;:?•/1> 

### CJI7

____._v".···w . Date



### EPA CRIMINAL INVESTIGATION DIVISION, DENVER AREA OFF'ICE

'" " ,,-, i J

"

## ~" I" ',/\' / I 

# t.}'1- ft

....::.:..., . '.,

...... ,'_.•_,_ ......... ,_...__ .."

Lori 

### A.. Hanson. Special Agent in Charge, CID Denver Area

# omce Date

()