UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX 75 Hawthorne Street San Francisco, CA 94105

MEMORANDUM

SUBJECT: Gila River Indian Community: Eligibility Determination under40 C.F.R. Part 49 for CleanAir Act Sections 107. 110. Ill. 112. 114. andTitle 

### V.

FROM: Maeve Foley 

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Tribal AirCoordinator.

## Air~~n VaH Frank 

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Attorney, Office of

## RegiOnal~unse\ THRU: DeborahJordan Director, Air Divisi
Nancy Marvel

# '1t..~**!.714~** Regional Counsel .\

TO: LauraYoshii Acting Regional Administrator

1. ACTION

The Air Division and the Office ofRegional Counsel have reviewed an application and request by the GilaRiverIndian Community ("the Tribe") for a determination ofeligibilityfor treatment in the same manner as a state ("Treatment as State" or "TAS") pursuantto the CleanAirAct (';CAA") andthe Tribal Authority Rule ("TAR"). The Tribe requests TAS eligibilityto implement four CAAprograms: 

### (i) a tribal implementation plan ("TIP") under CM 

### § 110; (ii) theNew Source Performance Standards ("NSPS") under CAA 

### § 111; (iii) theNational Emission Standards for Hazardous Air Pollutants ("NESHAP") under CAA 

### § 112; and (iv) a Title V permitprogram. In addition, the Tribe has also requested TAS for notification as an "affected state" under CAA 

### § 505{a){2) and air quality designations under CAA 

### § 107(d). We conclude thatthe Tribe meets the eligibility requirements ofCAA 

### § 30 1(d)(2). 42 U.S.C. 

### § 7601{d)(2), and40 C.F.R. 

### § 49.6, and is therefore eligible for TAS torthese purposes. Our conclusion relates solelyto the Tribe's eligibilityfor TAS and does not address the approvability underthe CAA ofany actual tribal air program. Thetour CAA programs for whichthe Tribe has requested TAS eligibility are togethercalled an air quality managementplan ("AQMP") and includeregulations thatpertainto requirements ofCAA Sections 110. 111, 112, 114, andTitle

1V. The U.S. Environmental Protection Agency ("EPA") will detennine whether to approve each component ofthe Tribe's AQMP for a particular CAAprogram in separate notice and comment processes, where appropriate.

2. BACKGROUND

The CAA, as amendedby the 1990 Amendments, and the TAR1 authorize EPAto treat eligible Indiantribes in a similarmanner as states for the purposes ofvarious provisions ofthe CAA, including implementationplans under Section 110 ofthe CAA, Title V programs, and all ofthe otherprovisions requested inthe Tribe's TAS application. See CAA § 301(d)(I),'42 U.S.c. § 7601(d)(I) authorizing EPAto "treat Indian tribes as States"under the CAA. Pursuant to CAA § 301(d)(2), 42 U.S.C. § 7601(d)(2), EPA promulgated the TAR at 40 C.F.R. Part 49, which specifies those provisions ofthe CAA appropriate for TAS and sets forth the procedureby which EPA reviews a tribe's request for a TAS eligibility detennination. See 63 Fed. Reg. 7,254 (Feb. 12, 1998).

Under the TAR, a tribe seekingTAS submits an application demonstrating that it meets the criteria set forth in Section 301 (d)(2) ofthe CAA, 42 U.S.C. § 7601(d)(2), and 40 C.F.R. § 49.6. See 40 C.F.R. § 49.7. By letter dated November 17, 2006, received by EPA Region 9 on December 6, 2006, the Tribe submitted an application pursuantto 40 C.F.R. § 49.7, requesting
an eligibility detenninationunderthe CAA ("Tribal Application").

We have reviewed the following sources in making ourdetennination:
(I) The CAA, its relevant implementingregulations, and guidance;
(2) The current list oftribes recognized by the Secretary ofthe Interior;
(3) The Tribal Application, which includes the following: (a) The Tribe's Constitution, Law and Order Code, Title 13, and Financial Management and Procurement Policy (Attachment B); (b) A description ofthe exteriorboundaries ofthe Tribe's Reservation, the February 28, 1859 Act ofCongress establishing the Reservation2

, Executive Orders, and a map ofthe Reservation where the Tribe's air programs would apply (Attachment C); (c) Previous detenninations approvingthe Tribe's eligibility for TAS for purposes ofCAA Section 

### lOS, Clean Water Act ("CWA") Section 106, and CWA

I The Tribal Authority Rule implements Clean Air Act provisions that apply to Indian tribes, including CAA § 30I(d), 42 U.S.c. § 760l(d) (providing that the Administrator "is authorized to treat Indian tribes as States under this chapter.

..") and CAA § 302(r), 42 U.S.C. § 7602(r) (defining "Indian tribe" as "any Indian tribe, band, nation,
orother organized group orcommunity, including any Alaska Native village, which is Federally recognized as eligible for the special programs and services provided by the United States to Indians because oftheir status as Indians").
2 11 Stat. 401. 2Section 319, and an EPA Region 9 letterrecognizing the Tribe's capacity to issue, following EPA review on a case-by-case basis, permits containingpractically enforceable limits ona source's potential emissions. (Attachment**C)~** and (d) A narrative ofthe Tribe's capabilities to effectively administer CAA programs, the Tribe's Department ofEnvironmental Quality Organizational Chart, and Air Quality Management Plan Ordinances (Attachment D). (4) Comments onthe Tribe's Reservation boundaries submitted by the Arizona Department ofEnvironmental**Quality~** and (5) Additional boundary information submitted by the Tribe, including supplementary intormationthat was made available to appropriate governmental entities and the public for comment, and intormation submitted inresponse to a comment made by the State ofArizona. 3

We concludethat the Tribe meets the TAS eligibility requirements set forth by CAA 

### § 30I(d)(2), 42 U.S.C. 

### § 7601(d)(2), and 40 C.F.R. 

### § 49.6 and is therefore eligible for TAS underthe CAAto implement: (i) a TIP under CAA 

### § 11**O~** (ii) theNSPSs under CAA § III (iii) the NESHAPs under CAA § 112; and (iv) a tribal Title V permit program. In addition, we conclude thatthe Tribe is eligible for TAS to betreated as an "affected state" under CAA 

### § 505(a)(2) and to submitrecommendations to EPA on airquality designations under CAA 

### § I07(d).4

The Tribe formally submittedan AQMP inperson to EPA Region 9 AirDivisionDirector Deborah Jordan on February 21,2007 and submitted supplemental materials onJuly 11,2007 and June 22, 2009. The AQMP includes components relating to various CAAprograms: a TIP under CAA 

### § 110; provisions adoptingthe National AmbientAir Quality Standards ("NAAQS") promulgatedthrough October2006 as Tribal**standards~** pennittingrequirements for minor sources ofairpollution; enforcement authorities, including civil, criminal, andcitizen suit**provisions~** provisions for administrative appeals andjudicialreview; emissions limits for area sources; individual source requirements for existingand new sources, and source categoryspecific emissions limits for existing and new sources. The AQMP also includes provisions adopting as Tribal standards theNational Emission Standards for Hazardous 

### AirPollutants ("NESHAP") andNew Source Performance Standards ("NSPS"), for which the Tribehas requested delegationofimplementation authorities, and Title V permitregulations, which the Tribe is currently revising. Finally, the Tribe has also submitted other supportingdocumentation, including an emissions inventory ofsignificant sources ofair pollution on the Reservation and a

3 See Letter from Jennifer K. Gift', General Counsel, Gila River Indian Community to Wayne Nastri. Regional Administrator, EPA Region IX, "Re: Gila River Indian Community Treatment as State (TAS) Application", October 6,2008, and Letter from Jennifer K. Giff, General Counsel, Gila River Indian Community. to Maeve Foley, "Re: Gila River Indian Community Jurisdiction," March 18,2009.

4 Although Indian tribes are not required to recommend designations under CAA § 107(d), EPA generally invites and considers designation recommendations from Indian tribes. whether ornot a tribe has been determined tobe eligible for TAS for this purpose. This TAS eligibility determination recognizes the Tribe'seligibility underthe CAA and the TARto submit such recommendations. 

### 3description ofits ambient air monitoringnetwork. By adopting and implementingthese tribal programs, the Tribe seeks to protect air quality within the exterior boundaries ofthe Tribe's Reservation. In subsequent notices, and consistent withthe CAA and EPA'sregulations, EPA intends to propose action onthe Tribe's TIP and on its request for delegation ofauthority to implementthe NSPSs andNESHAPs. EPA will provide notice of these proposed actions with a request for public comment in the Federal Register. EPA and the Tribe have entered into a Memorandum ofAgreement ("MOA") that establishes procedures to facilitate EPA's delegation to the Tribe ofauthority to implementthe NESHAPs, and sets forth the manner in which, ifEPA approves the Tribe's request, EPA and the Tribe would coordinate their respective responsibilities under this program.5 With respect to the Title V program, the Tribe has indicated that it intends to revise its Title V permit regulations to address CAA requirements and to re-submit themto EPA for approval. EPA intends to propose action on the Tribe's Title V program and provide notice for public comment in the Federal Register following submission ofa revised programby the Tribe. Finally, with respect to the Tribe's status under CAA sections 505(a)(2) and 107(d), no further EPA action is necessary.
3. NOTIFICATION OF APPROPRIATE GOVERNMENTAL ENTITIES AND PUBLIC COMMENT

Consistent with the TAR, EPA provided notice to appropriate governmental entities and the public specifying the geographic boundaries ofthe Reservation as set forth in the Tribal Application and supplemental information. Forthis eligibility determination, appropriate governmental entities included: the Arizona Department ofEnvironmental Quality (with a copy to Maricopa County, Pinal County, and the City ofPhoenix), the State ofArizona, Ak-Chin Indian Community, Fort McDowell Yavapai Nation, Salt River PimaMaricopa Indian Community, Tohono O'odhamNation, and the United States Bureau ofLand Management. These notices were signed and sent by EPA on December 15, 2008. OnDecember 16, 2008, a public notice was published in theArizonaRepublic, the most widely read newspaper in Arizona. The notice announced receipt ofthe Tribe's application and invited public comment onthe boundary assertions contained withinthe application.

On January 21, 2009, the Arizona Department ofEnvironmental Quality (the "State") submitted commentsrequesting clarification oftheTribe's legal description for the southeastportion ofthe Tribe's Reservation border, includingparts ofSections 10,6,and 12. EPA notified the Tribe of the State'scomments onJanuary 28,2009. The Tribe responded to the State's comments by providing an August 1914 Executive Order which had been inadvertently left out ofthe Tribe's original application, correcting a typographical error inthe Tribe's description ofa July 1911 Executive Order, and submitting a survey ofSection 12. See Letter from Jennifer K. Giff, General Counsel, Gila River Indian Community, to Maeve Foley, "Re: GilaRiver Indian Community Jurisdiction," March 18, 2009. EPAprovided this letterto the State OIlMarch 25, 2009. The State then sent a letterto EPA statingthat all ofits concerns regardingthe Tribe's boundary had beenresolved. See Letterfrom Nancy C. Wrona, Director ADEQ Air Quality

5 See Memorandum ofAgreement between the Gila River Indian Community and the U.S. Environmental Protection Agency Regarding Delegation ofNational Emission Standards for Hazardous Air Pollutants, November 10,2008. 4Division, to Maeve Foley, "GilaRiver Indian Community Boundary," May 22,2009. Thus, we believe that all issues raised bythe State regarding the Tribe's Reservation boundaries have been resolved.

EPA did not receive any other comments regarding the Tribe's Reservation boundary assertions.



### 4. ELIGIBILITYREQUIREMENTS

As noted above, the requirements for this eligibility determination are identified in the TARat40 C.F.R. § 49.6, and the application requirements are outlined at40 C.F.R. 

### § 49.7. Specifically these requirements are that: a) the applicant is an Indian tribe recognized bythe Secretary ofthe**Interior~** b) the Indian tribe has a governingbody carrying out substantial governmental duties and**functions~** c) the functions to be exercisedbythe Indian tribe pertainto the management and protection ofair resources within the exteriorboundaries ofthe reservation orother areas within the tribe's**jurisdiction~** and d) the Indian tribe is reasonably expectedto be capable, in the EPA Regional Administrator'sjudgment, ofcarrying outthe functions to be exercised 

### ina manner consistent with the terms and purposes ofthe CAA and all applicable regulations. These requirements are addressed below in sections 4.a. through 4.d; issues regarding criminal enforcement are addressed in section 4.e.

EPA has previously approved the Tribe's applications for TAS eligibility for tribal water pollution control grants under Section 106 ofthe CWA (March 1990), airpollution control grants under Section 105 ofthe CAA (March 1999), and nonpoint source management grants under Section 319 ofthe CWA (January 2005). Under 40 C.F.R. 

### §49.7(a)(8), a Tribethat has previously received authorization for a CAAprogram or any otherEPAprogramneed only identify the priorauthorization and provide the required information whichhas notbeen submitted in the previous application.


### a)The applicant is an Indian tribe recognized by the Secretary ofthe Interior6

A tribe may establish federal recognition ifit appears onthe list offederally-recognized tribes thatthe Secretary ofthe Interior periodicallypublishes in the Federal Register. 

### See 59 Fed. Reg. 43956,43962 (Aug. 25, 1994).

TheTribe previously demonstrated that it fulfilled this requirement andhas demonstrated that it remains eligible byreferencing the list of"Indian Entities Recognized and Eligible to Receive Services from the United States and the Bureau ofIndian Affairs," published bythe Department ofthe Interior in August of2009. 

### See Tribal Application Attachment A; 

### see also, 74 Fed. Reg. 40218,40220 (August 11,2009).

We conclude that the Tribe's application satisfies the requirement of40 C.F.R. 

### §49.7(a)(I), 

### and that the Tribe meets the requirement of40 C.F.R. 

### § 49.6(a).

6 See 40 C.F.R. § 49.6(a) and 40 C.F.R. §49.7(a)(1). 5b) The Indian tribe has a governing body carrying out substantial governmental duties and functions'

A tribe may demonstrate that it has a governmental body exercising substantial duties and powers by providing a detailed statement describing the form ofits tribal government and the types ofgovernmental functions itcurrently performs (such as the exercise ofpolice powers relating to the health, safety, and welfare ofthe reservation population, taxation, and the power ofeminent domain), and identifying the sources ofthe tribe's authority to carry out such functions. See 40 C.F.R. § 49.7(a)(2).
As noted above, EPA has previously approved the Tribe's applications for TAS for certain grant programs under the CWA and the CAA. As part ofthose approvals, EPA determined that the Tribe has a government carrying out substantial duties and powers. A tribe that has been previously approved for TAS under the CWA and/or CAA has already established that it meets the governmental requirement and need not makethis showing again. See 59 Fed. Reg. at 43962. 

### In addition, the Tribe has provided additional information regarding its government in the context ofthe current application.

The Constitution and Bylaws ofthe Gila River Indian Community, Arizona, March 17, 1960 ("Constitution"), establishthe seventeen-member Gila River Indian Community Council ("Council"), elected from their respective districts for 3 year terms. The Tribe is governed by the Council. See Tribal Application Attachment B.

The Governor, Lieutenant Governor, and Judges are elected by the Community at large for 3 year terms. The Governor is the Tribe's chiefexecutive officer, while the Lieutenant Governor acts to assist the Governor. The Secretary, Treasurer, and Standing Committees and Boards are appointed by the Council; Special Committees are appointed bythe Governor with Council authorization. The Gila River Indian Community Law and Order Code Title 9 prescribes the powers and duties ofthe Governor, Lieutenant Governor, Secretary, and Treasurer ofthe Tribe, in addition to the powers and duties set forth inthe Constitution. Id.

The Constitution authorizes the Council to "promote and protectthe health, peace, morals, education, and general welfare ofthe Community and its members;

...to provide for the maintenance oflaw and order and the administration of justiceby establishing a Community Court and Police force;

... to do such other acts ofgovernmental or public nature;

... to pass ordinances necessary or incidental to the exercise ofany ofthe foregoing powers." Id.: and see Constitution, Art. XV, Sec. 9,17,18, and 19.
The Council meets on the first and third Wednesday ofevery month to act on the business ofthe Tribe. The Constitution also affords Tribal members the rights ofrecall, referendum, and initiative. Id.; and see Constitution, Art. XII-XIV.
The Tribe has exercised its civil regulatory authority through ordinances in a number ofareas including: regulation oftraffic, removal and exclusion ofnon-members from the Reservation and

7 See 40 C.F.R. § 49.6(b) and 40 C.F.R. § 49.7(a)(2). 6

### ---

- ..--- ----­

civil trespass, requiring sex offenderregistration and notification, requiringbusiness licenses and imposing taxes, regulating alcoholic beverages, regulating hunting and fishing, protecting native plants, regulating animals and livestock, and regulating zoning and construction. See Letter from Jennifer K. Giff, General Counsel, GilaRiver Indian Community to Wayne

### Nastri. Regional Administrator, EPA Region IX, "Re: Gila River Indian Community Treatment as State (TAS) Application," October 6, 2008.
The Tribe has enacted seven environmental ordinances including: Medical Waste Management Ordinance, Tribal Implementation Plan tor Air Quality Management, Chemical Emergency Planning and Community Right-to-Know Ordinance, Pesticide Ordinance, Control and Suppression ofPink Bollworm Ordinance, Beehives Ordinance, and Solid Waste Ordinance. See Tribal Application AttachmentD.
The Tribe also supplied a copy ofGRIC Code, Title 13 Business Licenses and Taxation, in addition to the Tribe's Financial Management and ProcurementPolicy, to detail the extensive governmental functions carried out by the Tribe. Id.

We conclude that the Tribe's application satisfies the requirement of40 C.F.R. §49.7(a)(2), and thatthe Tribe meets the government eligibilityrequirement of40 C.F.R. 

### § 49.6(b). 

### c) Thefunctions to be exercised bytheIndian tribepertain to the management and protection ofairresources within the exterior boundaries ofthe reservation orother
areas within thetribe'sjurisdictionS

EPA interprets the CAA as a statutory grant ofauthority to eligible tribes over all airresources withinthe exteriorboundaries oftheir reservations. See 63 Fed. Reg. 7254, 7254-57 (February 12, 1998). This interpretation was upheld in a courtappeal challenging certainaspects ofthe TAR. ArizonaPublic Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), cert. deniedsub nom, Michigan v. EPA, 532 U.S. 970 (2001). Thus, in applications where a tribe proposes to manage and protect air resources only within the boundaries ofits reservation, the primary focus ofthe inquiry into the tribe's authority to do so is the boundary ofthe reservation.9 A tribe must identify clearly and precisely the exterior boundaries ofthe reservation. Typically, a map or legal description ofthe area is sufficient. See 40 C.F.R. 

### § 49.7(a)(3); 59 Fed. Reg. 43,956, 43,962 (Aug. 25, 1994).

The Tribe seeks authority to regulate air quality within the exteriorboundaries ofits Reservation, and has identified, with clarity andprecision, those boundaries. 10 Specifically, the Tribe asserts that the boundary establishedby Act ofCongress onFebruary 28, 1859,11 and modifiedby

8 See 40 C.F.R. § 49.6(c) and 40 C.F.R. §49.7(a)(3).

9 Certain additional issues regarding tribal criminal authority are discussed below in section 4.e.
10 See Tribal Application, Attachment C; Letter from Jennifer K. Gift'. General Counsel, Gila River Indian Community to Wayne Nastri. "Re: Gila River Indian CommunityTreatment as State (TAS)Application", October 6,2008; and Letter from Jennifer K. Giff, General Counsel, Gila River Indian Community, to Maeve Foley, "Re: Gila River Indian Community Jurisdiction," March 18,2009.
11 11 Stat. 40I. 7Executive Orders until July 19, 1915,12 constitutes the exteriorboundary ofthe Reservation. The Reservation occupies 581 square miles in south-central Arizona, and is adjacent to the cities of Phoenix and Chandler. The original boundaries ofthe Reservation created by the 1859 Act of Congress were completely enclosed by lands added to the Reservation by the Executive Orders described above.

As noted in section 3 ofthis document, the State submitted comments noting questions regarding portions ofsections 10, 6, and 12 ofthe Reservation. See Letter from Nancy C. Wrona, Director, ADEQ Air Quality Division, "Gila River Indian Community (GRIC) Boundary," January 21, 2009. These comments were subsequently resolved when the Tribe provided an Executive Order that had inadvertently been left out ofthe original TAS submission application, corrected a typographical error in the Tribe's boundary description, and provided a recent survey ofSection 12. See Letter from Nancy C. Wrona, Director ADEQ Air Quality Division, to Maeve Foley, "Gila River Indian Community Boundary," May 22,2009. EPA did not receive any other comments on the Tribe's application.

The Tribe's application describes the northern boundary ofthe Reservation as beginning at a point in the middle ofthe Salt River. Although EPAreceived no comments regarding the northern Reservation boundary, EPA is aware through independent proceedings that some movement ofthe Salt River may have occurred since the formation ofthe Reservation and that
an issue may exist regarding the specific current line ofthe River's mid-channel. EPA notes, however, that it is not uncommon for geographic features such as rivers to shift slightly over time, and that, where such features form Indian reservation orotherboundaries, such boundaries may (or may not) also shift, consistent with applicable legal principles regarding river boundaries. In some cases, additional surveys may, from time to time, be appropriate to update the exact location ofa boundary line depending, for example, on whether specific relevant implementation issues are raised. In this case, there are currently no CAA-regulated air sources located nearthe northern boundary ofthe Tribe's Reservation. Further, the legal description and supporting documentation provided by the Tribe accurately describe the northern Reservation boundary as having been established by Executive Order at the relevant stretch ofthe midchannel ofthe Salt River, and this description is undisputed. In these circumstances, EPA does not believe that an updated survey ofthe precise line ofthe Salt River mid-channel is called for to approve the Tribe's TAS application. Indeed, EPA notes that any such survey could, consistent with applicable legal principles, remain subject to potential additional movement as the River meanders slightly across its plain. In any event, irrespective ofthe surveyed line, EPA's approval oftheTribe's application extends only to the relevant stretch ofthe Salt River's mid-channel as established by Executive Order. 13
We conclude that the information provided by the Tribe as described above meets the requirements of40 C.F.R. 

### § 49.7(a)(3) and that the Tribe meets the requirement of40 C.F.R. 

### §

12 Exec. Order (Aug. 31, 1876); Exec. Order (June 14, 1879); Exec. Order (May 5, 1882); Exec. Order (Nov. 15, 1883); Exec. OrderNo. 1387 (July 31, 1911); Exec. OrderNo. 1416 (Sept. 28, 1911); Exec. OrderNo. 1782 (June 2, 1913); Exec. Order (July 19,1915).
13 1fan issue arises regarding past or future movement ofthe Salt River and its impact on a source potentially regulated under an air quality program, EPA wi1l work with the Tribe and the source to address it. 

### 849.6(c). 

### d) The Indian tribe is reasonably expected to be capable, in theEPA Regional Administrator'sjudgment,ofcarryingoutthe functions to be exercised in a manner consistentwith the terms and purposes ofthe Clean AirAct and aU applicable

· 

### regu a Ions 14 I t
A tribe must demonstrate that it is reasonably expected to be capable ofetIectively administering the functions for which it seeks approval. Tribes may satisfy this eligibilityrequirement by providing a narrative statement describing, among other things, the tribe's (i) previous management experience, (ii) existing environmental or public healthprograms, (iii) existing mechanisms for carrying outthe executive, legislative, andjudicial functions ofthe tribal government; (iv) the agency within the tribal government that will assume primary responsibility for administering the program under the CAA and its relationship to the entities that it will regulate; and (v) technical and administrative capabilities to administer and manage the program. See 40 C.F.R. § 49.7 (a)(4), 59 Fed. Reg. 43956, 43963 (Aug. 25, 1994).

The GRIC DEQ has demonstrated that the Tribe has the programmatic, administrative, and legal capability necessary to implementthe AQMP. Specifically, the Tribe has demonstrated knowledge and skills inthe following areas:

• Air quality standards, includingrecommending air quality designations
• Air quality monitoring, quality assurance, and data interpretation
• Air quality modeling and emissions inventory development
• Airpollution control regulation development
• Air pollution control permitting
• Enforcement, including administration ofa tribal court system
• Program implementation, including staffrecruitment and financial resources • Public process requirements, includingpublic hearings

The following analysis and conclusion apply only to the current eligibility determination, as EPA evaluates capability on a program-by-program basis. fd.

i. 

### Previous ManagementExperience The Tribehas been interested in protecting its environment for many years, and officially establishedthe GilaRiver Indian CommunityDepartment ofEnvironmental Quality ("GRIC DEQ") byTribal Executive Order in 1995. The GRIC DEQ is experienced at grant and program management and has completed the TAS process for three EPA programs, CWA Section 106, CAA Section 105, and CWA Section 319. EPARegion 9 has also recognized the Tribe's capacity to issue, following EPA review ona case-by-casebasis, permits containing practically enforceable limits on a source's potential emissions. See Tribal Application Attachment C.
GRIC DEQ has successfully managedthe CAA Section 105 grant since 1999. During this time,

14 See40 C.F.R. § 49.6(d) and 40 C.F.R. § 49.7(a)(4). 

### 9the GRIC DEQ has gained invaluable experience in air quality program development, ambient air quality monitoring, regulatory development, compliance assistance, and enforcement. In additionto the Air Quality Program, the Tribe also manages a comprehensive environmental program that includes water quality, pesticides, solid waste, hazardous waste, emergency response, and community outreach. 

### See Tribal Application, Attachment D.

ii. 

### Existing Environmental orPublic Health Programs As described above, the Tribe administers numerous programs in various mediato protect the environment. One such program consists ofissuing prescribed bumpermits in coordination with the Tribe's Fire Department. The Tribe has done extensive outreach in the community to discourage the burning ofhousehold waste, while encouraging individuals with yard waste to apply for a prescribed bumpermit. The permits cite the Tribe's Solid Waste Ordinance which prohibits the burning ofhousehold waste, and limits prescribed burning to certain times ofthe year dependent on meteorological conditions. This program has ledto a significantreduction in open burning throughout the Reservation.

The Tribe has also conducted enforcement actions against violators under its tribally enforceable ordinances. In one such case, GRIC DEQ issued a compliance order under the Medical Waste Management Ordinance which required a medical waste disposal company to terminate operations ofan incinerator until proper air pollution controls were in place.

GRIC DEQ continues to expand its regulatory enforcement authorities through the development ofadditional ordinances. The Tribe's pesticide program is currently working on a structural pesticide control ordinance and the water quality program is finalizing a waste water discharge ordinance that would establish standards for effluent water discharges. In addition, GRIC DEQ has implemented a compliance inspection and enforcement training program for employees, attorneys, rangers, and police.


### iii. 

### Description oftheEntities Exercising Executive, Legislative, and Judicial Functions In section 3.b above we described the Tribal Council, which exercises primary governing functions, as well as the Tribal Court, which exercisesjudicial functions. The Tribe has a Tribal Court system in place for adjudication ofviolations ofAQMP Ordinances, as well as a process by which a party can appeal certain actions, like permit decisions.

The GRIC DEQ has developed a civil enforcement ordinance which provides the Tribe with a wide range ofoptions to tailor enforcement to the nature and extent ofnoncompliance. Civil enforcement actions can be in the form ofadministrative compliance orders, civil penalties, injunctive relief, or denial orrevocation ofan operating permit. Penalties are assessed based on calculations established by GRIC DEQ and the Tribal Court. The ordinance allows for administrative penalties up to $5,000 per day per violation andjudicial penalties up to $10,000 per day per violation.
When the Tribe issues an administrative compliance order, the recipient has the opportunity to challenge it by requesting an administrative hearing before the order becomes effective. Ifan
10

### administrative hearing is notrequested, the compliance order becomes final and enforceable in Tribal Court. Ifa hearing is requested, it will be held before anAdministrative LawJudge ("AL],,). Based on evidence and applicable law, the ALl will issue a recommended decisionto the GRIC DEQ Director, who may accept it, reject it, or modify it. The Director's decision becomes a Final Administrative Decision, which may be appealed to the Tribal Court. The Court may only reverse the Director's decision ifitis clearly erroneous ornot supported by evidence in

### the record. The Tribal Court's decision may be appealed to the Gila River Appellate Court for further review. This provides a fair and independent forum where the regulated community and other affected parties can seek review ofGRIC DEQ decisions.

To ensure that knowing violators are appropriately punished, the criminal enforcement ordinance sets forth anenforcement referral procedure by which the Tribe's General Counsel canrefer for federal criminal prosecution any person who willingly orknowingly violates a Tribal ordinance
orpermit issued subject to the AQMP (ifapproved under the CAA). The Tribehas entered into
an MOA with EPA to facilitate the referral process. 15



### iv. Description ofExisting orProposed Agency thatwillAssume Primary Responsibility for Administering a CAA Program GRIC DEQ will assume primary responsibility for administering and implementing the AQMP. In 1995, the Tribe's then-Governor established the GRIC DEQ by Executive Order. GRIC DEQ brought together several existing programs that had been located invarious departments. The structure was based on a plan, approved by Tribal leadership, which included development of comprehensive environmental regulatory capacity. The Departmenthas grown from an initial staffofsix in 1995, to a staffofmore than 25 today. GRIC DEQ has primary responsibility for the protection ofenvironmental quality on Reservation lands, and the preservation ofthe environment for future generations. As detailed above in section 3.d.i, GRIC DEQ implements
an air quality program, water quality program, pesticides program, solid wasteprogram, hazardous waste and emergency response program, and a community outreachprogram.
Within the GRIC DEQ, the Air Quality Program Office ('"the Program") regulates 

### air pollution. The Tribe established the Program for the purpose ofprotectingthe Tribe's airresources. The Tribal Council has approved the AQMPthrough ordinance**GR~07-02** 

### (Tribal Implementation Plan for Air Quality Management). See 

### Tribal ApplicationAttachment D. Accordingly, the Program is responsible for permitting and enforcement decisions underthe Tribe'sAQMP.
The Program consists offive full time staff, including a Compliance and EnforcementManager, Environmental Engineer, Environmental Team Supervisor, Air Quality Specialist, and an Air Quality Project Associate. All staffmembers have associates orbachelors degrees, and a combined 40 years ofair quality experience. Staffhave specific expertise inambient air quality monitoring, compliance and enforcement. compliance inspections, performance testing, and permit writing. The Executive Director ofGRIC DEQ provides oversight ofthe Program and is directly involved in its day- to- day management. The GRIC DEQ SeniorEnvironmental

15See Memorandum ofAgreement between the Gila River Indian Community and the U.S. Environmental Protection Agency Regarding Criminal Enforcement ofthe Tribal Implementation Plan Pursuantto the Clean Air Act and 40 C.F.R. Part 49, October 2009. ] 1Planner and Environmental Outreach Coordinator also provide assistance to the Program. During ourreview ofthe Tribe's capability to administer and enforce the AQMP, we also considered the conflict ofinterest requirements set forth in Section 128 ofthe CAA, which requires that any board or body that approves permits or enforcement orders "have at least a majority ofmembers who represent the public interest and do not derive any significant portion oftheir income from persons subject to [the] permits or enforcement orders

...." See 42 U.S.C. 

### § 7428. As noted above, the GRIC DEQ Director and Program staffwill manage the permitting and enforcementprogram described in the Tribe's AQMP. At least one facility that is subjectto the AQMP is ownedby the Tribe, and itis possible that other facilities owned by the Tribe will be subject to permits or enforcement orders issued by GRIC DEQ in the future. The Tribal government distributes per capitapayments to Tribal members based on a percentage ofTribal business revenues, which fluctuate based on the performance ofthese businesses. Several Program staffare Tribal members, and members may continue to hold these and otherpositions in GRIC DEQ in the future, subject to the conflict ofinterest provisions discussed below.

The GRIC AQMP addresses potential conflicts ofinterest by prohibiting the Director and "any other individual having approval authority over permits or enforcement orders" from having "a substantial interest in persons required to obtain a permit under [the AQMP].,,16 The AQMP defines "substantial interest" as "any pecuniary or proprietary interest, either direct or indirect," with limited exceptions

- such as membership as a nonsalaried officer in a nonprofit corporation, and family relationships other than those ofdependents or spouses. Importantly, the AQMP limits the financial interest that the Director or any Program staffmay have in any for-profit corporation subject to a permit or enforcement order to less than three percent ofthe shares of the corporation, "providedthe total annual income from dividends, including the value ofstock dividends, from the corporation does not exceed five percent ofthetotal annual income ofsuch officer oremployee and any other payments made to the individual by the corporation do not exceed five percent ofthat individual's total annual income." Id. These limitations are adequate to ensure that the Director and Program staffrepresent the public interest and do not derive any significant portion oftheir income from persons subject to the permits or enforcement orders issued by GRIC DEQ, consistent with the requirements ofCAA Section 128.



### v. TechnicallAdministrative Capabilities GRIC DEQ air quality personnel have extensive experience in ambient air quality monitoring, air quality inspections, compliance assistance, enforcement, and regulatory development. Air quality personnel have attended extensive air quality and enforcement trainings offered by the Institute for Tribal Environmental Professionals and the National Environmental Training Institute. Personnel have also assisted in teaching national courses sponsored by EPA, on topics related to air program development, compliance, and enforcement. GRIC DEQ has conducted a series ofemployee trainings related to implementing the air regulatory program, and GRIC DEQ has issued several tribally-enforceable permits under the Tribe's adopted AQMP.

In addition to proving information about the technical capacity ofstaff, the Tribe has provided a detailed description ofits accounting and procurement system. See Tribal Application

16 GRIC Code: Title 17, Chapter 9. Air Quality Management Plan for Gila River Indian Community. Part 1.2.4. 12Attachment B. GRIC DEQ has a history ofetl'ectively managing funds providedby the Tribal govermnent and by EPA. GRIC DEQ receives funding from the Tribal Council through an annual budgetprocess that applies to all tribal government departments. We expectthat the GRIC DEQ will continue to receive adequate funding to maintain its staffand programs.


### vi. Conclusion Based onthe foregoing information, we conclude that the Tribe is capable ofcarrying out, in the
same manner as a state, CAA Sections 110, 111, 112, 114, and Title V, and all other CAA provisions covered by the Tribal Application, as described above, consistent with the CAA and all applicable regulations. Thus, we conclude that the Tribe's Application satisfies the requirements of40 C.F.R. 

### §49.7(a)(4) andthat the Tribe meets the eligibility requirement of40 C.F.R. 

### § 49.6(d).



### e.**Auth~rity** for Criminal Enforcement
Where the provisions ofthe CAA orimplementing regulations governing the program for which
a Tribe seeks approval mandate criminal enforcement authority, the Tribe may enterinto a MOA with the appropriate EPA Region to address the exercise ofsuch authority. 

### See 40 C.F.R. §§ 49.7(a)(6) and 49.8. To the extent that a tribe is precluded from asserting criminal enforcement authority, the federal government will exercise primary criminal enforcementresponsibility. 

### Id. The MOA must incorporate a procedure by which the tribe will provide the Federal government with investigative leads regarding suspected criminal violations. 

### Id.

In October 2009 GRIC entered into an MOA with EPA Region 9 and EPA's Criminal Investigations Division concerning enforcement ofthe Tribe's AQMP. William Rhodes, Governor; Jennifer Gitl', General Counsel; and Margaret Cook, GRIC DEQ Director, executed the MOA for the Tribe. Nicholas J. Torres, Special-Agent-in-Charge ofthe Region 9 Criminal Investigation Division, and DeborahJordan, Region 9 AirDivisionDirector, executedthe MOA for EPA.

Under the terms ofthe MOA, the Tribe and its agencies will refer to the appropriate EPA orU.S. Department ofJustice office alleged violations ofthe Tribe's AQMP (ifapproved under the CAA) where the alleged violator is a non-Indian, as well as all criminal activity where the potential tine is greater than $5000 orthe penalty would involve imprisonmentfor more than one year (see 25 U.S.C. 1302, the Indian Civil Rights Act of 1968, and Oliphant v. Squamish, 435 U.S. 191 (1978». All AQMP and related air enforcement issues outside ofthis agreement will be pursued, as appropriate, by the Tribe's air quality staffandtribal police officers.

We have attached the fully executed MOA between the Tribe and EPA Region 9. We have sent
a copy ofthe fully executed agreement to Governor William Rhodes.

13

### 5. CONCLUSION

We conclude that the Tribe has satisfied the eligibilityrequirements set forth in Section 301(d)(2) ofthe CAA and the TAR, making 

### iteligible for TAS to implement four CAA programs: (i) a TIP under CAA 

### § 110; (ii) the NSPSs under CAA 

### § Ill; (iii) theNESHAPs under CAA 

### § 112; and (iv) a Title V permitprogram. In addition, we conclude that the Tribe is eligible for TAS for notification as an "affected state" under CAA 

### § 505(a)(2) and air quality designations under CAA 

### § 107(d). 

### See 40 C.F.R. 

### §49.9(g). We request your signature below approving this eligibility determination.

APPROVED

Date J Acting Regional Administrator

14UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX 75 Hawthorne Street San Francisco, CA 94105

MEMORANDUM

SUBJECT: Gila River Indian Community: Eligibility Determination under 40 C.F.R. Part 49 for Clean Air Act Sections 107, 110, 111, 112, 114, and Title V.

FROM: Maeve Foley Tribal Air Coordinator, Air Division

Vali Frank Attorney, Office ofRegional Counsel

THRU: Deborah Jordan Director, Air Division Nancy Marvel Regional Counsel

TO: Laura Yoshii Acting Regional Administrator

1. ACTION

The Air Division and the Office ofRegional Counsel have reviewed an application and request by the Gila River Indian Community ("the Tribe") for a determination ofeligibility for treatment in the same manner as a state ("Treatment as State" or "TAS") pursuant to the Clean Air Act ("CAA") and the Tribal Authority Rule ("TAR"). The Tribe requests TAS eligibility to implement four CAA programs: (i) a tribal implementation plan ("TIP") under CAA § 110; (ii) the New Source Performance Standards ("NSPS") under CAA § 111; (iii) the National Emission Standards for Hazardous Air Pollutants ("NESHAP") under CAA § 112; and (iv) a Title V permit program. In addition, the Tribe has also requested TAS for notification as an "affected state" under CAA § 505(a)(2) and air quality designations under CAA § 107(d). We conclude that the Tribe meets the eligibility requirements ofCAA § 301(d)(2), 42 U.S.C. § 7601(d)(2), and 40 C.F.R. §49.6, and is therefore eligible for TAS for these purposes.

MAIL CODE

U.S. EPA CONCURREN

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