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 SWINOMISH 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 Swinomish 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 Permit Conditions 3/9/12 

STC 19-02.150 Additional Permit 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 3/9/12 
STC 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 

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

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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 cited 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 all 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 explicitly 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 livestock for use and consumption. 

“Agricultural activity” includes but is not limited to activities necessary for or 

related to disease or pest control, crop propagation, and crop rotation, but does not 

include manufacturing, bulk storage, handling for resale, or the formulation of any 

agricultural chemical. 

(3) “Agricultural burning” means the burning of vegetative debris from an 

agricultural activity. 
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(4) “Air Pollutant” means any air pollution agent or combination of such agents, 

including any physical, chemical, biological, radioactive (including source 

material, special nuclear material, and 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 pollutant, to the extent the Administrator 

has identified such precursor or precursors for the particular 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 atmosphere, 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 subject to Subchapter II of this Chapter 

pursuant to STC 19-02.080 and open burns that meet one of the exceptions listed 

in Section 19-02.100(F). 

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

the Swinomish Indian Tribal Community 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 Swinomish Office of Planning and 

Community Development or his authorized designee. 

(11) “Emission” means a direct or indirect 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” and “Open burning” include but are not 

limited to burning in burn barrels. 

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

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

PM-10 and PM-2.5. 
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(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 corporation, trust, unincorporated 

association, general or limited partnership, or limited liability company; the 

United States or any State or local government 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 listed in Section 19-02.090(B). 

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

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

(24) “Senate” means the Swinomish Indian Senate, 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 Reorganization 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. 
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SUBCHAPTER II – OPEN BURNING 

19-02.080 Applicability of Subchapter. 

This Subchapter applies to any open burn conducted within the Reservation, except for an open 

burn conducted for Tribally-recognized cultural or spiritual purposes. 

19-02.090 General Rules for Open Burning. 

(A) Fire safety and air quality 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 been kept as dry as practicable; 

(4) Burns only materials that have been separated from non-combustible materials as 

much as practicable; 

(5) Burns only materials that have been separated 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 Section, no person shall burn or allow the 

burning of the following materials 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 materials resulting from a salvage operation; 

(e) Tires or rubber materials or products; 

(f) Plastics, plastic products, or Styrofoam; 
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(g) Asphalt or composition roofing, or any other 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 treated with preservatives; 

(k) Construction debris or demolition waste; 

(l) Pesticides, herbicides, fertilizers, or other chemicals; 

(m) Insulated wire; 

(n) Batteries; 

(o) Light bulbs; 

(p) Materials containing mercury (e.g., thermometers); 

(q) Asbestos or asbestos-containing materials; 

(r) Pathogenic wastes; 

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

(t) Any material other than natural vegetation that normally emits dense 

smoke or noxious fumes when burned; 

(u) Any material from a site other than the parcel number upon which the 

open burn is conducted; or 

(v) Fireworks or associated packaging, other than fireworks the burning of 

which is permitted under Title 15, Chapter 2 of the Swinomish Tribal 

Code – Fireworks. 

(2) A training fire containing prohibited 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 determined by the Department to contribute to an 

exceedence of Federal ambient air quality standards for carbon monoxide, PM-10 or PM2.5. 
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(D) Nuisance. No person shall commence or continue an open burn within the Reservation 

that endangers public health or welfare or that constitutes a nuisance. 

19-02.100 Burn Bans. 

(A) The Department may declare a burn ban during 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 effective National Ambient Air Quality 

Standards, 40 C.F.R. Part 50. 

(C) The Department may declare a burn ban based on data or meteorological conditions in 

the airshed indicating impaired 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 materials have become extremely flammable. 

(E) The Department shall provide notice of a burn ban by placing a sign by the side of each 

main road providing access to the Reservation and by posting notice on the open burning 

hotline, and, in its discretion, by sending notice 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 recreational 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 issued 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 declaration of a burn ban may be continued 

during a burn ban if the Department determines that immediate cessation of the 

open burn would likely cause greater emissions 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: 
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(1) Prohibit all open burning including 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 Reservation 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 burn and shall comply with the conditions of 

the permit when conducting such open burn. 

(B) An open burn permit application shall be submitted 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 Department 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 number 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 proposed 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 proposed to be burned, including the estimated 

size of the material to be burned; 

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

(7) The requested date(s) when the proposed open burning would be conducted; and 
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(8) Any other information requested by the Department if such information is 

reasonably necessary to determine 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 location 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 conditions listed in Section 19-

02.140 and may include any additional permit 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 containing any prohibited 

materials; and 

(2) Agricultural burning. 

(B) Any person who commences an open burn within the Reservation requiring 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 prior 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). 
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(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 the 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 location 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 permit 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 air 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 include the standard permit conditions listed in Section 19-

02.140 and may include any additional permit 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 use 
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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, the 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 burn permit issued pursuant to Section 19-

02.110 or special use permit issued pursuant to Section 19-02.120 and shall be included 

in such permit: 

(1) The permittee shall comply with Section 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 structures 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 protect public health and welfare. 

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

(a) At least one piece of heavy land clearing 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 equipment 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 than 15 miles per hour 

or are gusting to 20 or more miles per hour. 
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(6) The permittee shall immediately extinguish the 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 structure 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 materials; batteries; stored 

chemicals such as pesticides, herbicides, fertilizers, paints, glues, sealers, tars, solvents, 

household cleaners, or photographic 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 addition to those listed in Section 19-02.140 

on open burn permits issued pursuant to Section 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 cubic feet per minute) immediately 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 least 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 commencing 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. 
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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 accordance 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 Tribe is not in any way waived or limited by this Chapter, or by 

any appeal commenced pursuant to this Chapter, and 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 Department, the Department 

Director, all Tribal officials, employees, staff, and agents, as to all actions taken pursuant to this 

Chapter, or taken in, pursuant to, or concerning, the administration or enforcement of this Chapter, 

and as to all actions taken pursuant to any authority of any action, decision or order authorized by 

this Chapter. 

SUBCHAPTER VI – REPEALER, SEVERABILITY AND EFFECTIVE DATE 

19-02.250 Repealer. 

This Chapter repeals and supersedes all prior inconsistent provisions of a Tribal ordinance or 

resolution, the Swinomish Tribal Code, or a part thereof, provided, however, that the repeal or 

amendment of any prior inconsistent provision 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, penalty, or forfeiture incurred, or any right to prosecute or recover 

based on the same accrued, under such provision prior 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 repeal or amendment of such provision shall not 

affect any proper prosecution 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 application of the provision to other persons or 

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

severable. 

 
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19-02.270 Effective Date. 

This Chapter shall become effective immediately upon approval of the Secretary of the Interior 

or his or her designee.