UNITED 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. Ill. 112. 114. and Title V. 

FROM: Maeve Foley Yh1!UVt 

Tribal Air Coordinator. Air~~n

VaH Frank 1)Ji 1__ /l 

Attorney, Office ofRegiOnal~unse\

THRU: Deborah Jordan 

Director, Air Divisi 

Nancy Marvel '1t..~!.714~ 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 of eligibility 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 CM § 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 tor these purposes. Our conclusion 

relates solely to the Tribe's eligibility for TAS and does not address the approvability under the 

CAA of any actual tribal air program. The tour CAA programs for which the Tribe has 

requested TAS eligibility are together called an air quality management plan ("AQMP") and 

include regulations that pertain to requirements of CAA Sections 110. 111, 112, 114, and Title 

1 
V. The U.S. Environmental Protection Agency ("EPA") will detennine whether to approve 

each component ofthe Tribe's AQMP for a particular CAA program in separate notice and 

comment processes, where appropriate. 

2. BACKGROUND 

The CAA, as amended by the 1990 Amendments, and the TAR1 authorize EPA to treat eligible 

Indian tribes in a similar manner as states for the purposes of various provisions of the CAA, 

including implementation plans under Section 110 ofthe CAA, Title V programs, and all of the 

other provisions requested in the Tribe's TAS application. See CAA § 301(d)(I),'42 U.S.c. § 

7601(d)(I) authorizing EPA to "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 procedure by 

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 seeking TAS 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 pursuant to 40 C.F.R. § 49.7, requesting 

an eligibility detennination under the CAA ("Tribal Application"). 

We have reviewed the following sources in making our detennination: 

(I) The CAA, its relevant implementing regulations, 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 exterior boundaries ofthe Tribe's Reservation, the 

February 

28, 1859 Act of Congress establishing the Reservation2

, Executive Orders, 

and a map ofthe Reservation where the Tribe's air programs would apply 

(Attachment C); 

(c) Previous detenninations approving the 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 § 

30 I(d), 42 U.S.c. § 760 l(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, 

or other organized group or community, 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. 

2 
Section 319, and an EPA Region 9 letter recognizing the Tribe's capacity 

to issue, following EPA review on a case-by-case basis, permits 

containing practically enforceable limits on a source's potential emissions. 

(Attachment C)~ and 

(d) A narrative of the 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 on the Tribe's Reservation boundaries submitted by the Arizona 

Department of Environmental Quality~ and 

(5) Additional boundary information submitted by the Tribe, including supplementary 

intormation that was made available to appropriate governmental entities and the 

public for comment, and intormation submitted in response to a comment made 

by the State ofArizona. 3 

We conclude that 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 under the CAA to 

implement: (i) a TIP under CAA § 11 O~ (ii) the NSPSs under CAA § III (iii) the NESHAPs 

under CAA § 112; and (iv) a tribal Title V permit program. In addition, we conclude that the 

Tribe is eligible for TAS to be treated as an "affected state" under CAA § 505(a)(2) and to 

submit recommendations to EPA on air quality designations under CAA § I07(d).4 

The Tribe formally submitted an AQMP in person to EPA Region 9 Air Division Director 

Deborah Jordan on February 21,2007 and submitted supplemental materials on July 11,2007 

and June 22, 2009. The AQMP includes components relating to various CAA programs: a TIP 

under CAA § 110; provisions adopting the National Ambient Air Quality Standards 

("NAAQS") promulgated through October 2006 as Tribal standards~ pennitting requirements for 

minor sources of air pollution; enforcement authorities, including civil, criminal, and citizen suit 

provisions~ provisions for administrative appeals and judicial review; emissions limits for area 

sources; individual source requirements for existing and new sources, and source categoryspecific emissions limits for existing and new sources. The AQMP also includes provisions 

adopting as Tribal standards the National Emission Standards for Hazardous Air Pollutants 

("NESHAP") and New Source Performance Standards ("NSPS"), for which the Tribe has 

requested delegation of implementation authorities, and Title V permit regulations, which the 

Tribe is currently revising. Finally, the Tribe has also submitted other supporting documentation, 

including an emissions inventory of significant sources of air 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 or not a tribe has been determined to be 

eligible for TAS for this purpose. This TAS eligibility determination recognizes the Tribe's eligibility under the 

CAA and the TAR to submit such recommendations. 

3 
description of its ambient air monitoring network. 

By adopting and implementing these tribal programs, the Tribe seeks to protect air quality within 

the exterior boundaries of the Tribe's Reservation. In subsequent notices, and consistent with the 

CAA and EPA's regulations, EPA intends to propose action on the Tribe's TIP and on its request 

for delegation of authority to implement the NSPSs and NESHAPs. 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 of Agreement ("MOA") that establishes procedures to 

facilitate EPA's delegation to the Tribe of authority to implement the NESHAPs, and sets forth 

the manner in which, if EPA 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 them to 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 of a revised program by 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. For this eligibility determination, appropriate 

governmental entities included: the Arizona Department of Environmental Quality (with a copy 

to Maricopa County, Pinal County, and the City of Phoenix), the State ofArizona, Ak-Chin 

Indian Community, Fort McDowell Yavapai Nation, Salt River Pima Maricopa Indian 

Community, Tohono O'odham Nation, and the United States Bureau ofLand Management. 

These notices were signed and sent by EPA on December 15, 2008. On December 16, 2008, a 

public notice was published in the Arizona Republic, the most widely read newspaper in Arizona. 

The notice announced receipt ofthe Tribe's application and invited public comment on the 

boundary assertions contained within the application. 

On January 21, 2009, the Arizona Department ofEnvironmental Quality (the "State") submitted 

comments requesting clarification ofthe Tribe's legal description for the southeast portion ofthe 

Tribe's Reservation border, including parts of Sections 10,6, and 12. EPA notified the Tribe of 

the State's comments on January 28,2009. The Tribe responded to the State's comments by 

providing an August 1914 Executive Order which had been inadvertently left out of the Tribe's 

original application, correcting a typographical error in the Tribe's description of a July 1911 

Executive Order, and submitting a survey of Section 12. See Letter from Jennifer K. Giff, 

General Counsel, Gila River Indian Community, to Maeve Foley, "Re: Gila River Indian 

Community Jurisdiction," March 18, 2009. EPA provided this letter to the State OIl March 25, 

2009. The State then sent a letter to EPA stating that all of its concerns regarding the Tribe's 

boundary had been resolved. See Letter from Nancy C. Wrona, Director ADEQ Air Quality 

5 See Memorandum of Agreement between the Gila River Indian Community and the U.S. Environmental Protection 

Agency Regarding Delegation of National Emission Standards for Hazardous Air Pollutants, November 10,2008. 

4 
Division, to Maeve Foley, "Gila River Indian Community Boundary," May 22,2009. Thus, we 

believe that all issues raised by the 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. ELIGIBILITY REQUIREMENTS 

As noted above, the requirements for this eligibility determination are identified in the TAR at 40 

C.F.R. § 49.6, and the application requirements are outlined at 40 C.F.R. § 49.7. Specifically 

these requirements are that: a) the applicant is an Indian tribe recognized by the Secretary of the 

Interior~ b) the Indian tribe has a governing body carrying out substantial governmental duties 

and functions~ c) the functions to be exercised by the Indian tribe pertain to the management and 

protection of air resources within the exterior boundaries ofthe reservation or other areas within 

the tribe's jurisdiction~ and d) the Indian tribe is reasonably expected to be capable, in the EPA 

Regional Administrator's judgment, of carrying out the functions to be exercised in a 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 of the CWA (March 1990), air pollution control 

grants under Section 105 ofthe CAA (March 1999), and nonpoint source management grants 

under Section 319 of the CWA (January 2005). Under 40 C.F.R. § 49.7(a)(8), a Tribe that has 

previously received authorization for a CAA program or any other EPA program need only 

identify the prior authorization and provide the required information which has not been 

submitted in the previous application. 

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

A tribe may establish federal recognition if it appears on the list offederally-recognized tribes 

that the Secretary ofthe Interior periodically publishes in the Federal Register. See 59 Fed. Reg. 

43956,43962 (Aug. 25, 1994). 

The Tribe previously demonstrated that it fulfilled this requirement and has demonstrated that it 

remains eligible by referencing the list of "Indian Entities Recognized and Eligible to Receive 

Services from the United States and the Bureau of Indian Affairs," published by the Department 

of the Interior in August of 2009. 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 of 40 C.F.R. § 49.7(a)(I), and 

that the Tribe meets the requirement of 40 C.F.R. § 49.6(a). 

6 See 40 C.F.R. § 49.6(a) and 40 C.F.R. § 49.7(a)( 1).
 

5
 
b) 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 of its tribal government and the 

types of governmental functions it currently performs (such as the exercise of police powers 

relating to the health, safety, and welfare of the reservation population, taxation, and the power 

of eminent domain), and identifying the sources of the 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 make this showing again. See 59 Fed. Reg. at 

43962. In addition, the Tribe has provided additional information regarding its government in 

the context of the current application. 

The Constitution and Bylaws ofthe Gila River Indian Community, Arizona, March 17, 1960 

("Constitution"), establish the 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 chief executive 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 by the 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 in the Constitution. Id. 

The Constitution authorizes the Council to "promote and protect the health, peace, morals, 

education, and general welfare ofthe Community and its members;... to provide for the 

maintenance oflaw and order and the administration ofjustice by 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 of any ofthe foregoing powers." Id.: and see 

Constitution, Art. XV, Sec. 9,17,18, and 19. 

The Council meets on the first and third Wednesday of every month to act on the business of the 

Tribe. The Constitution also affords Tribal members the rights of recall, referendum, and 

initiative. Id.; and see Constitution, Art. XII-XIV. 

The Tribe has exercised its civil regulatory authority through ordinances in a number of areas 

including: regulation of traffic, removal and exclusion of non-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 offender registration and notification, requiring business 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, 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. 

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 of Pink Bollworm Ordinance, Beehives Ordinance, and Solid Waste Ordinance. See 

Tribal Application Attachment D. 

The Tribe also supplied a copy ofGRIC Code, Title 13 Business Licenses and Taxation, in 

addition to the Tribe's Financial Management and Procurement Policy, 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 

that the Tribe meets the government eligibility requirement of 40 C.F.R. § 49.6(b). 

c) The functions to be exercised by the Indian tribe pertain to the management and 

protection of air resources within the exterior boundaries of the reservation or other 

areas within the tribe's jurisdictionS 

EPA interprets the CAA as a statutory grant of authority to eligible tribes over all air resources 

within the exterior boundaries of their reservations. See 63 Fed. Reg. 7254, 7254-57 (February 

12, 1998). This interpretation was upheld in a court appeal challenging certain aspects of the 

TAR. Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000), cert. denied sub 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 of its reservation, the primary focus of the 

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 exterior boundaries ofits Reservation, 

and has identified, with clarity and precision, those boundaries. 10 Specifically, the Tribe asserts 

that the boundary established by Act of Congress on February 28, 1859,11 and modified by 

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 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.
 

11 11 Stat. 40 I.
 

7 
Executive Orders until July 19, 1915,12 constitutes the exterior boundary 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 of this document, the State submitted comments noting questions regarding 

portions of sections 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 of Section 

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 of the Salt River. Although EPA received no comments regarding the 

northern Reservation boundary, EPA is aware through independent proceedings that some 

movement of the Salt River may have occurred since the formation of the 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 or other boundaries, 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 of a 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 near the northern boundary of the 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 of the midchannel of the Salt River, and this description is undisputed. In these circumstances, EPA does 

not believe that an updated survey of the precise line of the 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 of the surveyed line, 

EPA's approval ofthe Tribe's application extends only to the relevant stretch of the 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 of 40 C.F.R. § 49.7(a)(3) and that the Tribe meets the requirement of 40 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. Order No. 1387 (July 31, 1911); Exec. Order No. 1416 (Sept. 28, 1911); Exec. Order No. 1782 (J une 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.
 

8 
49.6(c). 

d) The Indian tribe is reasonably expected to be capable, in the EPA Regional 

Administrator's judgment, of carrying out the functions to be exercised in a manner 

consistent with the terms and purposes of the Clean Air Act and aU applicable · regu a Ions 14 I t 

A tribe must demonstrate that it is reasonably expected to be capable of etIectively administering 

the functions for which it seeks approval. Tribes may satisfy this eligibility requirement by 

providing a narrative statement describing, among other things, the tribe's (i) previous 

management experience, (ii) existing environmental or public health programs, (iii) existing 

mechanisms for carrying out the executive, legislative, and judicial 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 implement the AQMP. Specifically, the Tribe has demonstrated 

knowledge and skills in the following areas: 

• Air quality standards, including recommending air quality designations 

• Air quality monitoring, quality assurance, and data interpretation 

• Air quality modeling and emissions inventory development 

• Air pollution control regulation development 

• Air pollution control permitting 

• Enforcement, including administration of a tribal court system 

• Program implementation, including staff recruitment and financial resources 

• Public process requirements, including public 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 Management Experience 

The Tribe has been interested in protecting its environment for many years, and officially 

established the Gila River Indian Community Department ofEnvironmental Quality ("GRIC 

DEQ") by Tribal 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. EPA Region 9 has also recognized the Tribe's 

capacity to issue, following EPA review on a case-by-case basis, permits containing practically 

enforceable limits on a source's potential emissions. See Tribal Application Attachment C. 

GRIC DEQ has successfully managed the CAA Section 105 grant since 1999. During this time, 

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

9
 
the GRIC DEQ has gained invaluable experience in air quality program development, ambient 

air quality monitoring, regulatory development, compliance assistance, and enforcement. In 

addition to 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 or Public Health Programs 

As described above, the Tribe administers numerous programs in various media to protect the 

environment. One such program consists of issuing prescribed bum permits in coordination with 

the Tribe's Fire Department. The Tribe has done extensive outreach in the community to 

discourage the burning of household waste, while encouraging individuals with yard waste to 

apply for a prescribed bum permit. The permits cite the Tribe's Solid Waste Ordinance which 

prohibits the burning ofhousehold waste, and limits prescribed burning to certain times of the 

year dependent on meteorological conditions. This program has led to a significant reduction 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 of an incinerator until proper air pollution controls were in place. 

GRIC DEQ continues to expand its regulatory enforcement authorities through the development 

of additional 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 of the Entities 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 exercises judicial functions. The Tribe has a Tribal 

Court system in place for adjudication of violations of AQMP 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 of options to tailor enforcement to the nature and extent of noncompliance. Civil 

enforcement actions can be in the form of administrative compliance orders, civil penalties, 

injunctive relief, or denial or revocation of an 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 and judicial 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. If an 

10
 
administrative hearing is not requested, the compliance order becomes final and enforceable in 

Tribal Court. If a hearing is requested, it will be held before an Administrative Law Judge 

("AL],,). Based on evidence and applicable law, the ALl will issue a recommended decision to 

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 ifit is clearly erroneous or not 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 of GRIC DEQ decisions. 

To ensure that knowing violators are appropriately punished, the criminal enforcement ordinance 

sets forth an enforcement referral procedure by which the Tribe's General Counsel can refer for 

federal criminal prosecution any person who willingly or knowingly violates a Tribal ordinance 

or permit issued subject to the AQMP (if approved under the CAA). The Tribe has entered into 

an MOA with EPA to facilitate the referral process. 15 

iv. Description of Existing or Proposed Agency that will Assume 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 in various departments. The 

structure was based on a plan, approved by Tribal leadership, which included development of 

comprehensive environmental regulatory capacity. The Department has grown from an initial 

staff of six in 1995, to a staff of more 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 waste program, 

hazardous waste and emergency response program, and a community outreach program. 

Within the GRIC DEQ, the Air Quality Program Office ('"the Program") regulates air pollution. 

The Tribe established the Program for the purpose ofprotecting the Tribe's air resources. The 

Tribal Council has approved the AQMP through ordinance GR~07-02 (Tribal Implementation 

Plan for Air Quality Management). See Tribal Application Attachment D. Accordingly, the 

Program is responsible for permitting and enforcement decisions under the Tribe's AQMP. 

The Program consists of five full time staff, including a Compliance and Enforcement Manager, 

Environmental Engineer, Environmental Team Supervisor, Air Quality Specialist, and an Air 

Quality Project Associate. All staff members have associates or bachelors degrees, and a 

combined 40 years of air quality experience. Staff have specific expertise in ambient air quality 

monitoring, compliance and enforcement. compliance inspections, performance testing, and 

permit writing. The Executive Director ofGRIC DEQ provides oversight of the Program and is 

directly involved in its day- to- day management. The GRIC DEQ Senior Environmental 

15 See Memorandum ofAgreement between the Gila River Indian Community and the U.S. Environmental 

Protection Agency Regarding Criminal Enforcement of the Tribal Implementation Plan Pursuant to the Clean Air 

Act and 40 C.F.R. Part 49, October 2009. 

] 1 
Planner and Environmental Outreach Coordinator also provide assistance to the Program. 

During our review of the Tribe's capability to administer and enforce the AQMP, we also 

considered the conflict of interest requirements set forth in Section 128 of the CAA, which 

requires that any board or body that approves permits or enforcement orders "have at least a 

majority of members 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 staff will manage the permitting 

and enforcement program described in the Tribe's AQMP. At least one facility that is subject to 

the AQMP is owned by the Tribe, and it is 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 capita payments to Tribal members based on a percentage of Tribal 

business revenues, which fluctuate based on the performance of these businesses. Several 

Program staff are Tribal members, and members may continue to hold these and other positions 

in GRIC DEQ in the future, subject to the conflict of interest provisions discussed below. 

The GRIC AQMP addresses potential conflicts of interest 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 of dependents or spouses. Importantly, the AQMP 

limits the financial interest that the Director or any Program staff may have in any for-profit 

corporation subject to a permit or enforcement order to less than three percent of the shares of 

the corporation, "provided the total annual income from dividends, including the value of stock 

dividends, from the corporation does not exceed five percent ofthe total annual income of such 

officer or employee and any other payments made to the individual by the corporation do not 

exceed five percent of that individual's total annual income." Id. These limitations are adequate 

to ensure that the Director and Program staff represent the public interest and do not derive any 

significant portion of their 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 of employee 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 of staff, the Tribe has provided a 

detailed description of its 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.
 

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Attachment B. GRIC DEQ has a history of etl'ectively managing funds provided by the Tribal 

govermnent and by EPA. GRIC DEQ receives funding from the Tribal Council through an 

annual budget process that applies to all tribal government departments. We expect that the 

GRIC DEQ will continue to receive adequate funding to maintain its staff and programs. 

vi. Conclusion 

Based on the foregoing information, we conclude that the Tribe is capable of carrying 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) and that the Tribe meets the eligibility requirement of 40 

C.F.R. § 49.6(d). 

e. Auth~rity for Criminal Enforcement 

Where the provisions of the CAA or implementing regulations governing the program for which 

a Tribe seeks approval mandate criminal enforcement authority, the Tribe may enter into a MOA 

with the appropriate EPA Region to address the exercise of such 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 enforcement responsibility. 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 of the Region 9 Criminal 

Investigation Division, and Deborah Jordan, Region 9 Air Division Director, executed the MOA 

for EPA. 

Under the terms of the MOA, the Tribe and its agencies will refer to the appropriate EPA or U.S. 

Department of Justice office alleged violations of the Tribe's AQMP (if approved 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 or the penalty would involve imprisonment for 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 of this agreement will be 

pursued, as appropriate, by the Tribe's air quality staff and tribal 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. 

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5. CONCLUSION 

We conclude that the Tribe has satisfied the eligibility requirements set forth in Section 

301 (d)(2) of the CAA and the TAR, making it eligible for TAS to implement four CAA 

programs: (i) a TIP under CAA § 110; (ii) the NSPSs under CAA § Ill; (iii) the NESHAPs 

under CAA § 112; and (iv) a Title V permit program. 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 

14
 
UNITED 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 of Regional 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 of Regional Counsel have reviewed an application and request 

by the Gila River Indian Community ("the Tribe") for a determination of eligibility 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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