# Swinomish Indians of

the Swinomish Reservation Washington

Tribal Implementation Plan

Tribal Effective Date: March 9, 2012

(Materials Incorporated by Reference 

# )

40 CFR 49.10957(c)

August 4, 2014

US EPA Region 10 Office of Air, Waste and Toxics

1200 Sixth Avenue Seattle, WA 98101

## TABLE OF CONTENTS

SWINOMISH INDIANS OF THE SWIN OMISH RESERVATION WASHINGTON 40 CFR PART 49, SUBPART M, SECTION 49.10951(c)

TRIBAL IMPLEMENTATION PLAN (TIP) RULES IN EFFECT AS OF AUGUST 4, 2014

EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Title 19 – Environmental Protection, Chapter 2 – Clean Air Act (Swinomish TIP for Open Burning, Part II)

Tribal citation Title/subject Tribal

effective date Explanations

STC 19-02.020 Title Authority 3/9/12

STC 19-02.030 Jurisdiction 3/9/12

STC 19-02.040 Definitions 3/9/12

Subchapter II – Open Burning

STC 19-02.080 Applicability of Subchapter 3/9/12

STC 19-02.090 General Rules for Open Burning 3/9/12 Except D

STC 19-02.100 Burn Bans 3/9/12

STC 19-02.110 Open Burn Permits 3/9/12

STC 19-02.120 Special Use Permits 3/9/12

STC 19-02.130 Open Burn and Special Use

Permit Fees 3/9/12 Except B

STC 19-02.140 Standard Pe rmit Conditions 3/9/12

STC 19-02.150 Additional Pe rmit Conditions 3/9/12

STC 19-02.160 Burn Notification and Inspection 3/9/12

Subchapter III – Public Involvement

STC 19-02.170 Public Information 3/9/12

STC 19-02.180 Public Hearings 3/9/12

Subchapter V – Appeals

STC 19-02.240 Sovereign Immunity 3/9/12

Subchapter VI – Repealer, Severability and Effective Date

STC 19-02.250 Repealer 3/9/12STC 19-02.260 Severability 3/9/12

STC 19-02.270 Effective Date 3/9/12

# EPA-approved Swinomish

Indians of the Swinomish Reservation Washington RegulationsEPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 1 of 13 Swinomish Tribal Code (STC)

Title 19 – Environmental Protection Chapter 2 – Clean Air Act

19-02.020 Title.

This Chapter shall be known and may be ci ted as the “Swinomish Clean Air Act.”

19-02.020 Authority.

This Chapter is authorized pursuant to Article 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 provisions of this Chapter shall apply to a ll persons and property subject to the governing authority of the Swinomish Indian Tribal Community to the maximum extent permitted by law.

19-02.040 Definitions.

(A) For the purposes of this Chapter, unless expl icitly 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 li vestock for use and consumption. “Agricultural activity” incl udes but is not limited to act ivities necessary for or related to disease or pest control, crop propagation, and crop rotation, but does not include manufacturing, bulk storage, handli ng for resale, or the formulation of any agricultural chemical.

(3) “Agricultural burning” means the burning of vegetative debris from an agricultural activity.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 2 of 13 (4) “Air Pollutant” means any air polluti on agent or combination of such agents, including any physical, chemical, biologi cal, radioactive (including source material, special nuclear material, an d 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 po llutant, to the extent the Administrator has identified such precursor or precursors for the partic ular 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 atmos phere, 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 subj ect to Subchapter II of this Chapter pursuant to STC 19-02.080 and open burns that meet one of th e exceptions listed in Section 19-02.100(F).

(8) “Commission” or “Planning Commission” means the Planning Commission of

the Swinomish Indian Tribal Comm unity or its authorized designee.

(9) “Department” or “Planning Department” means the Swinomish Office of Planning and Community Development.

(10) “ Director” means the Director of the Sw inomish Office of Planning and Community Development or hi s authorized designee.

(11) “Emission” means a direct or indi rect release into the atmosphere of any air pollutant(s), or air pollutant(s) released into the atmosphere.

(12) “Extinguished” 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 catching 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” a nd “Open burning” in clude but are not limited to burning in burn barrels.

(16) “Particulate matter” means any airborne finely di vided solid or liquid material

other than uncombined water. Particul ate matter includes but is not limited to

PM-10 and PM-2.5.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 3 of 13 (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 co rporation, trust, unincorporated association, general or limited partners hip, or limited liability company; the United States or any State or local govern ment or any of their programs, agencies, 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 list ed in Section 19-02.090(B).

(23) “Reservation” means the Swinomish Indian Re servation and includes all lands

and waters within the exterior boundaries of the Swinomish Indian Reservation.

(24) “Senate” means the Swinomish Indian Se nate, the governing body of the Swinomish Indian Tribal Community.

(25) “Structure” 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 recognized Indian tribe organized pursuant to Section 16 of the Indian Reorganizati on 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 were 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.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 4 of 13 SUBCHAPTER II – OPEN BURNING

19-02.080 Applicability of Subchapter.

This Subchapter applies to a ny open burn conducted with in the Reservation, except for an open burn conducted for Tribally-recognized cultural or spiritu al purposes.

19-02.090 General Rules for Open Burning.

(A) Fire safety and air qualit y protection provisions . No person shall commence or continue an open burn within the Reservation unless such open burn:

(1) Is attended at all times;

(2) Is conducted only during daylight hours, except for cooking and recreational fires:

(3) Burns only materials that have be en kept as dry as practicable;

(4) Burns only materials that have been se parated from non-combustible materials as much as practicable;

(5) Burns only materials that have been sepa rated from the grass or peat layer as much as practicable;

(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 S ection, no person shall burn or allow the burning of the following materi als 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;

(d) Junked motor vehicles or any material s resulting from a salvage operation;

(e) Tires or rubber materials or products;

(f) Plastics, plastic products, or Styrofoam;EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 5 of 13 (g) Asphalt or composition roofing, or any ot her asphaltic material or product;

(h) Tar, tarpaper, petroleum products, or paints;

(i) Paper, paper products, or cardboard other than what is necessary to start a fire;

(j) Lumber or timbers treate d with preservatives;

(k) Construction debris or demolition waste;

(l) Pesticides, herbicides, ferti lizers, or other chemicals;

(m) Insulated wire;

(n) Batteries;

(o) Light bulbs;

(p) Materials containing merc ury (e.g., thermometers);

(q) Asbestos or asbestos-c ontaining materials;

(r) Pathogenic wastes;

(s) Hazardous wastes, as defined under 40 C.F.R. § 261.3;

(t) Any material other than natural ve getation that normally emits dense smoke or noxious fumes when burned;

(u) Any material from a site other th an the parcel number upon which the open burn is conducted; or

(v) Fireworks or associated packaging, ot her than fireworks the burning of which is permitted under Title 15, Chapter 2 of the Swinomish Tribal

Code – Fireworks.

(2) A training fire containing prohibite d materials may be permitted by the Department pursuant to Section 19-02.120, provided that such burn complies with all other provisions of this Chapter, other applicable provisions of Tribal law, and applicable provisions 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 determin ed by the Department to contribute to an exceedence of Federal ambient air quality standards for carbon monoxide, PM-10 or PM2.5.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 6 of 13 (D) Nuisance. No person shall commence or continue an open burn within the Reservation that endangers public health or welf are or that constitutes a nuisance.

19-02.100 Burn Bans.

(A) The Department may declare a burn ban durin g 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 measured 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 e ffective National Ambient Air Quality Standards, 40 C.F.R. Part 50.

(C) The Department may declare a burn ban base d on data or meteorol ogical conditions in the airshed indicating impair ed 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 indicate those ma terials have become extremely flammable.

(E) The Department shall provide notice of a bur n ban by placing a sign by the side of each main road providing access to the Reserv ation and by posting notice on the open burning hotline, and, in its discretion, by sending not ice 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 recreati onal 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 i ssued notice pursuant to subsection (G)(1)

of this Section that such an open burn is prohibited; and

(2) An open burn commenced prior to the decl aration of a burn ban may be continued during a burn ban if the Department dete rmines that immediate cessation of the open burn would likely cause greater emi ssions 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:EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 7 of 13 (1) Prohibit all open burning incl uding fires for cooking and recreational purposes; and

(2) Prohibit the use of woodstoves, except in homes in which woodstoves are the primary heating source.

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 Re servation 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 bur n and shall comply w ith the conditions of the permit when conducting such open burn.

(B) An open burn permit application shall be subm itted 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 Departme nt and shall contain, at a minimum, the following information:

(1) Street address and parcel number of the property upon which the proposed open burn will occur;

(2) Name, mailing address, and telephone numbe r 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 responsible for conducting the proposed open burn;

(4) A plat or other map:

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

(b) Showing the location of the proposed open burn in relation to property lines and vehicle access to the property; and

(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 propos ed to be burned, including the estimated size of the material to be burned;

(6) A description of the measures that will be taken to preven t escaped fires;

(7) The requested date(s) when the proposed open burning would be conducted; andEPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 8 of 13 (8) Any other information requested by the Department if such information is reasonably necessary to dete rmine 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 lo cation 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 conditi ons listed in Section 19- 02.140 and may include any additional perm it 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 cont aining any prohibited materials; and

(2) Agricultural burning.

(B) Any person who commences an open burn within the Reservation re quiring a special 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 be submitted to the Department at least three working days pr ior 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 19-02.110(B).EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 9 of 13 (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 th e nature and volume of the vegetative debris proposed

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 lo cation 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.

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

burn:

(1) Will not cause an adverse impact on Reservation air quality, including but not limited to an exceedence of any applicable Tribal or Federal ai r quality standard;

(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 incl ude the standard permit conditi ons listed in Section 19- 02.140 and may include any additional perm it 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 denial 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 useEPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 10 of 13 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, th e 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 hours.

(D) From time to time, the Department may recommend changes in the fee schedule for Senate approval.

19-02.140 Standard Permit Conditions.

(A) The following conditions apply to any open bur n permit issued pursuant to Section 19- 02.110 or special use permit issued pursuant to Section 19-02.120 a nd shall be included in such permit:

(1) The permittee shall comply with Sec tion 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 stru ctures 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 may increase minimum setback requirements in order to protec t public health and welfare.

(4) The following shall be present at th e burn site during the open burn:

(a) At least one piece of heavy land cl earing 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 qualified to operate the eq uipment 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 th an 15 miles per hour or are gusting to 20 or more miles per hour.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 11 of 13 (6) The permittee shall immediately extinguish th e fire if instructed to do so by the Department, 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 st ructure 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 mate rials; batteries; stored chemicals such as pesticides, herbicides, ferti lizers, paints, glues, s ealers, tars, solvents, household cleaners, or photographi c 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 a ddition to those listed in Section 19-02.140 on open burn permits issued pursuant to Sec tion 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 capable of circulating at least 12,000 c ubic feet per minute) immedi ately after the open burn is ignited in order to reduce smoke and prevent smoldering; and

(2) If two or more burn piles are permitted to be burned at the same site, the permittee not ignite the 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 leas t 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 prior to commenci ng 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

.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 12 of 13 The Department shall institute a program designed 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.

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 acco rdance with 40 C.F.R. §51.102, as currently in

effect or hereafter amended.

SUBCHAPTER V – APPEALS

19-02.240 Sovereign Immunity.

The sovereign immunity of the Trib e is not in any way waived or limited by this Chapter, or by any appeal commenced pursuant to this Chapter, a nd 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 Depart ment, the Department Director, all Tribal officials, employees, staff, a nd agents, as to all actions taken pursuant to this Chapter, or taken in, pursuant to, or concerning, th e administration or enforcement of this Chapter, and as to all actions taken pursuant to any author ity of any action, decision or order authorized by this Chapter.

SUBCHAPTER VI – REPEALER, SE VERABILITY AND EFFECTIVE DATE

19-02.250 Repealer.

This Chapter repeals and supersedes all prior in consistent provisions of a Tribal ordinance or resolution, the Swinomish Tribal C ode, or a part thereof, provide d, however, that the repeal or amendment of any prior inconsistent provisi on of a Tribal ordinance or resolution, the Swinomish Tribal Code, or a part thereof by this Chapter shall not affect, release, or extinguish any civil or criminal liability, pe nalty, or forfeiture incurred, or any right to prosecute or recover based on the same accrued, under such provision prio r 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 re peal or amendment of such provision shall not affect any proper prosecuti on or action thereunder.

19-02.260 Severability.

If any provision of this Chapter or its application to any person or circumstances is held invalid, the remainder of the Chapter, or the applic ation of the provision to other persons or

circumstances is not affected and to this end th e provisions of this Title are declared to be

severable.EPA-approved Swinomish Indians of the Swin omish Reservation Washington Regulations

Page 13 of 13 19-02.270 Effective Date.

This Chapter shall become eff ective immediately upon approval of the Secretary of the Interior or his or her designee.