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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 ofz d to treat Indian tribes a

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 is
inconsistent 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: a2 - 2/'-/o

Swinomish Indian Tribal Community,

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Dated: -/ 0