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### A And ro xics as ;e Between the Swinomish Indian Tribal Community and the U.S. Environmental Protection Agency Region 10 Regarding Criminal Enforcement of

Certain Sections of the Clean Air Act on the Swinomish Reservation WHEREAS the U.S. Environmental Protection Agency (EPA), pursuant to Section 301(d) of the Clcan A-r-c , . , t(d), and140tTcR7Pat 49 is au o a f z d to treat Indian tribes in the same manner as states for the purpose of administering certain provisions of the Clean Air Act; WHEREAS the Swinomish Indian Tribal Community (SITC) has applied to EPA for treatment in the same manner as a state (TAS) for the purpose of administering a Clean Air Act tribal implementation plan (TIP) within the exterior boundaries of the Swinomish Indian Reservation; WHEREAS the criminal enforcement authority of SITC is limited by the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(7), and by other federal law; and WHEREAS federal regulations at 40 C.F.R §§ 49.7(a)(6) and 49.8 allow approval of tribal TAS applications for Clean Air Act programs that include criminal enforcement components where an eligible Indian tribe seeking TAS enters into a Memorandum of Agreement (MOA) with the appropriate EPA regional office, setting forth a procedure by 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; NOW THEREFORE the parties agree as follows: ARTICLE I. Applicability A. SITC will provide investigative leads in accordance with Article II when SITC has reason to suspect that: 1. A non-Native American has committed an act or omission within the exterior boundaries of the Swinomish Reservation potentially punishable by a criminal penalty, as provided by Section 113(c) of the Clean Air Act, 42 U.S.C. § 7413(c); or 2. A Native American has committed an act or omission within the exterior boundaries of the Swinomish Reservation potentially punishable by a criminal penalty resulting in a fine greater than $5,000, a term of imprisonment greater than one year, or both, as provided by Section 113(c) of the Clean Air Act, 42 U.S.C. § 7413(c). B. This MOA will not be construed to limit or otherwise alter the criminal enforcement jurisdiction of EPA or SITC under applicable federal law.

MEMORANDUM OF AGREEMENT,) ARTICLE II. Procedure By Which SITC Will Notify the Federal Government and Submit

Investigative Leads A. Whenever SITC has reason to suspect the circumstances described in Article I, SITC will immediately notify the EPA Criminal Investigation Division (CID) Seattle Area Office and/or the appropriate U.S. Attorney's Office by telephone or fax-and 'Novi-de iuitial investigative leads supporting such suspicion within 24 hours of becoming aware of the suspected violation. B. After providing the initial investigative lead, SITC will, when requested, continue to assist CID in collecting additional evidence to support the investigation, and will make available inspectors or other employees of SITC who witnessed the suspected violations or who are otherwise in the chain of custody for evidence of the violation. ARTICLE III. Liaisons and Communications A. The following individuals will fulfill the roles and responsibilities of this MOA: 1. For SITC, the Environmental Management Coordinator of the Swinomish Office of Planning and Community Development or the Chief of Police of the Swinomish Police Department; and 2. For EPA Region 10, the CID Seattle Area Office Special Agent in Charge. B. All communication between SITC and EPA or other representatives of the United States concerning investigations or enforcement matters covered by this MOA ("Covered Information") will be treated as confidential information and information compiled for law enforcement purposes not subject to disclosure under the Freedom of Information Act, 5 U.S.C. § 552 et seq., to the extent permitted by law. The parties shall take steps to preserve the confidentiality of Covered Information and, to the extent permitted by law, will not disclose Covered Information to anyone outside the Federal or Tribal governments without the consent of both parties except as part of an enforcement proceeding. If the Tribe is unable to protect Covered Information from disclosure, it shall notify EPA Region 10 before EPA shares any Covered Information with the Tribe. If the EPA or any other representative of the United States is unable to protect Covered Information from disclosure, including but not limited to disclosure under the Freedom of Information Act, it shall notify the SITC Office of Tribal Attorney at least 10 working days prior to disclosure. ARTICLE IV. Limitations A. This MOA defines in general terms the basis on which the parties intend to cooperate. Any provision in it is void to the extent that it conflicts with or isinconsistent with applicable law, federal regulations, or federal policy. This MOA is neither a fiscal nor a funds obligation document. Nothing in this MOA obligates EPA to expend appropriations or to enter into any contract, assistance agreement, interagency agreement, or incur other financial obligations. The MOA does not exempt transactions between EPA and SITC from EPA policies governing competition for assistance agreements and contracts. Any obligation or expenditure of funds by EPA in furtherance of the goals of this MOA must be consistent with existing legal authorities. All obligations and expenditures of funds EP ll be subject to the availabi appropriations and EPA's discretion in making budgetary determinations. Nothing in this MOA may be construed to give rise to a claim for compensation for services performed to further the goals of this agreement. B. This MOA does not create any right or benefit, substantive or procedural, enforceable by law or equity by a third party against SITC or EPA, their officers or employees, or any other person. This MOA does not direct or apply to any person other than SITC and EPA. C. This MOA will become effective on the date of the last signature. It may be modified or amended only through the written agreement of both parties. This MOA will continue in effect until terminated by the parties. Either party may terminate the MOA by providing 90 days written notice to the other party.

Edward J. Ko alski, Director Office of Compliance and Enforcement U.S. Environmental Protection Agency, Reg. 10 Dated: /;J

M •k E. Measer, S- l the Area Office Special Agent in Charge, Seattle Area U.S. EPA Criminal Investigation Division Dated: 

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