# TITLE 7. AIR QUALITY ORDINANCE

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## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

Environmental Code

TITLE 7. AIR QUALITY ORDINANCE
(Adopted by the Tribe 04/27/19)

CHAPTER 1. GENERAL PROVISIONS

SECTION 1. Short Title

This Ordinance shall be known as the Tribal Air Quality Ordinance of the Dry Creek
Rancheria Band of Pomo Indians.

SECTION 2. Findings

The Dry Creek Rancheria Tribal Council hereby finds as follows:

(A)

(B)

(C)

(D)

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The people of Dry Creek Rancheria have a primary interest in the protection and control of
the air and other natural resources affected by the improper emission of air contaminants
within the Rancheria, and the quality of such air and other natural resources must be protected
to insure the health, economic, aesthetic, and cultural well-being of the Dry Creek Rancheria

Pomo People.

The increasing volume and variety of air contaminants being emitted on the Rancheria and
the often-inadequate existing methods of managing air contaminants have the potential of
contributing to air pollution and to the general deterioration of the Rancheria’s environment
and creating conditions which threaten the health, safety, and welfare of tribal members and
residents of Dry Creek Rancheria.

The Dry Creek Rancheria Band of Pomo Indians possesses inherent sovereign authority to
regulate on-Rancheria air quality that affect fundamental Tribal interests and public health
and safety, including when such activities are conducted by nonmembers of the Tribe on
privately owned land within the Rancheria.

Under the Clean Air Act (42 U.S.C. §§7401-7671), Indian tribes can be treated as states for
purposes of the Act (42 U.S.C. §7601(d)), and the EPA Administrator may establish elements
of tribal implementation plans.

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(E) It is in the best interest of the Dry Creek Band of Pomo Indians and residents of the Dry
Creek Rancheria to establish and maintain a comprehensive tribal air quality policy, the
objectives of which are to manage and control emissions of air contaminants in the air of the
Rancheria in order to protect the health, safety, and welfare of tribal members and to preserve
the environment.

SECTION 3. Purpose
The general purposes of this Ordinance are to:

(A) Implement, regulate, and enforce environmental standards and criteria and exercise
comprehensive Tribal regulatory authority over all air quality within the exterior boundaries
of the Dry Creek Rancheria;

(B) Prevent air pollution on the Rancheria by setting ambient air quality standards that are at
least as stringent as federal standards under the federal Clean Air Act;

(C) Prevent the deterioration of the environment, standard of living, quality of life, health, safety,
and welfare of all persons within the exterior boundaries of the Rancheria;

(D) Protect fundamental Tribal cultural, ceremonial, religious, fishery, and economic stability of
residential, agricultural, commercial, industrial, forest, wetlands, riparian and
environmentally sensitive lands within the exterior boundaries of the Rancheria; and

(E) Provide and promote Tribal environmental protection and services within the Rancheria and
to regulate environmental activities under the principles of Tribal sovereignty.

SECTION 4. Authority

This Tribal Air Quality Ordinance is hereby adopted by the Dry Creek Rancheria Tribal Council
pursuant to Article VII of the Tribe’s Articles of Association authorizing the Tribal Council to
undertake such actions.

SECTION 5. Scope

The provisions of this Ordinance shall apply to all existing and proposed activities that have the
potential to adversely affect air quality on the Rancheria, and to all activities which have the
potential to affect cultural, ceremonial, religious, fishery, seasonal residential, public health,
safety, welfare, land, air, or water quality and other fundamental interests of the Tribe and residents
of the Rancheria. Activities to be regulated hereunder include but are not limited to:

(A) Emissions of air contaminants into the air;

(B) Industrial, commercial, or other activities that may result in the emission of air contaminants;

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(C) Emissions caused by recreational off-road driving of vehicles, automobiles, all-terrainvehicles, and motorcycles;

(D) All other activities that involve the emission of air contaminants into the air within the
exterior boundaries of the Rancheria.

CHAPTER 2. DEFINTIONS

For the purposes of this Ordinance, the following words and phrases shall have the following
meanings:

(A) “Board of Directors” means the Dry Creek Rancheria Band of Pomo Indians Board of
Directors.

(B) “Erosion Control Plan” means a tribally-approved plan for erosion control prior to any
construction or earth-moving activities on Tribal Lands.

(C) “Personnel Policies and Procedures” means the Tribe’s personnel policies and procedures, as
applicable to a Tribal employee.

(D) "Rancheria" means all land, air, and water located within the exterior boundaries of the Dry
Creek Rancheria and tribal trust lands.

(E) “Resident” means any person who resides on Tribal Lands.

(F) “Tribal Air Quality Control Officer” means the person designated by the Board of Directors to
serve in that capacity pursuant to this Code.

(G) “Tribal Lands” means all tribal trust lands, including the Rancheria.

CHAPTER 3. TRIBAL ENVIRONMENTAL PROTECTION DEPARTMENT

SECTION 1. Designation as Lead Tribal Agency

The Tribal Department of Environmental Protection shall be the lead department for implementing
this Ordinance.

SECTION 2. Creation of Tribal Air Quality Control Officer

There is hereby created in the Tribal Department of Environmental Protection the position of
Tribal Air Quality Control Officer. The Tribal Air Quality Control Officer shall serve under the
direction of the Director of the Tribal Department of Environmental Protection and shall be hired
in accordance with the Tribe’s administration Personnel Policies and Procedures. The Tribal Air
Quality Control Officer shall coordinate with the United States Environmental Protection Agency
and any other pertinent federal or state agency, as necessary to implement the regulations and
procedures set forth in this Ordinance.

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SECTION 3. Roles and Responsibilities of Tribal Air Quality Control Officer

The Tribal Air Quality Control Officer shall be responsible for:

(A)

(B)
(C)
(D)

(E)

(F)

(G)

(H)

(1)
(J)

Developing and maintaining a comprehensive program for prevention, control, and
abatement of air pollution throughout the entire Rancheria, including a program for
control of emissions from all significant sources of air pollution;

Promulgating ambient air quality goals for every portion of the Rancheria;
Identifying, inspecting, and defining the different degrees or types of air pollution;

Identifying, inspecting, and documenting each type of facility, process, or activity which
produces, or which potentially or accidentally might produce, significant emission of air
contaminants;

Promulgating an emission control regulation for each such facility, process and activity
identified in Subsection (D) of this Section, except for motor vehicles and airplanes to
the extent prohibited by federal law.

Monitoring and reporting of air contamination sources which presently, or may
potentially, adversely affect the air quality of the Rancheria;

Adopt and promulgate emission control regulations which require the use of effective
practical air pollution controls for each significant source, potential source, and type of
source of air contamination throughout the entire Rancheria;

Reviewing and recommending regulations to be adopted following notice and hearings
or written opportunity for public comments to carry out the purposes of this Title;

Installing and maintaining monitoring equipment or methods; and

Recording sample emissions.

CHAPTER 4. POLICY, REGULATIONS, AND MONITORING

SECTION 1. Policy

It is the Tribe’s policy to adopt and implement regulations which protect and improve the air
quality within the Rancheria to the maximum extent possible. The regulations set forth shall
require the use of effective practical air pollution controls for each significant source, potential
source, and type of source throughout the entire Rancheria.

The Tribe hereby finds that the following emissions shall be subject to emission control
regulations.

(A)
(B)
(C)

Visible pollutants;
Particulates;

Sulfur oxides, sulfuric acids, hydrogen sulfide, nitrogen oxides, carbon oxides,
hydrocarbons, fluorides and any other chemical substance;

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(D) Odors;

(E) Open burning activity, including but not limited to incidental refuse, dumps, agricultural
purposes, junk automobiles;

(F) Organic solvents;
(G) Photochemical substances; and

(H) Toxic gases.

SECTION 2. Regulations

(A) Burning Regulations

(1) Residents may burn non-toxic waste in open pits provided no such burning
interferes with the health or peaceful enjoyment of other Residents.

(2) The following is a list of safety precautions that must be followed by Residents who
engage in the open burning of non-toxic wastes:

i. Non-toxic wastes shall only be burned on a day declared a burn day by El
Dorado County for outdoor burning;

ii. Burn pile size shall be four (4) feet in diameter or less to ensure maximum
safety;

ili. Flammable materials and vegetation shall be cleared away within a ten (10)
foot radius of the pile;

iv. Only burn close to a water supply;
v. Only burn when an adult is in attendance; and
vi. Ensure that the burn fire is completely extinguished before leaving the area.

(3) At times, larger fires may occur in traditional structures or areas such as a round
houses, sweat lodges or dance arbors. The leader of the ceremony, dance, etc. is
responsible for exercising good judgment as it pertains to fire safety.

(4) In the performance of their regular duties, the Facilities Department, and the Tribal
Fire-Fuels Crew may have larger fires or burn piles. The Facilities Department
Director and Tribal Fire-Fuels Director are responsible for exercising good
judgment as it pertains to fire safety, however nothing in this Code creates any new
liability or otherwise waives tribal sovereign immunity.

(B) Off-Road Driving Regulations

(1) Recreational off-road driving of vehicles, including automobiles, all-terrainvehicles, and motorcycles, is prohibited in areas deemed sensitive to disturbance
and in areas identified by Tribal Council or Tribal Department of Environmental
Protection, (see attached map of sensitive areas). When off-road, vehicles shall not
be driven faster than fifteen (15) miles per hour.

(C) Dust Control Regulations

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(1) Construction. All construction activities taking place within the Rancheria shall
perform the following best management practices to reduce dust emissions:

i.

il.

ill.

iv.

vi.

Vil.

Xi.

Water all active construction areas as needed;

Cover all trucks hauling soil, sand, and other loose materials or require all
trucks to maintain at least two feet of freeboard (i.e., the minimum required
space between the top of the load and the top of the trailer);

Pave, apply water, or apply (non-toxic) soil stabilizers on all unpaved areas
and staging areas at construction sites;

Sweep streets daily (preferably with water sweepers) if visible soil material
is carried onto adjacent public streets;

Hydroseed or apply (non-toxic) soil stabilizers to inactive construction
areas (previously graded areas inactive for ten days or more);

Enclose, cover, water, or apply (non-toxic) soil stabilizers to exposed
stockpiles (dirt, sand, etc.);

Restrict or ban work on days of high winds (greater than thirty (30) miles
per hour) or when air quality violations are expected;

Limit traffic speeds on unpaved roads to fifteen (15) miles per hour;

Install sandbags or other erosion control measures to prevent silt runoff to
public roadways;

Replant vegetation in disturbed areas as quickly as possible; and

Designate a person or persons to oversee the implementation of a
comprehensive dust and erosion control program that includes a provision
to increase watering, if necessary.

(2) Construction Activities and Earth Work. All construction activities taking place

within the Tribal Lands must conform with all the following practices when
applicable:

1.

ii,

iil.

iv.

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Complete all necessary studies and submit the completed permitting signoff
sheet before ground breaking takes place.

An Erosion Control Plan must be in place and be reviewed and approved by
the Environmental Department before breaking ground on any construction
activities and or performing earth works on Tribal Land.

Erosion Control Plans must be followed at all times during construction
activities and earth works. If changes are made to an existing Erosion
Control Plan the Environmental Department must be provided with an
updated copy, with time to review and approve prior to such work being
done.

Apply Title 22 Reclaimed Water on all active construction areas as needed;

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Title 7. Air Quality Ordinance — Adopted by Tribe 04/27/19
v. Cover all trucks hauling soil, sand, and other loose materials or require all
trucks to maintain at least two (2) feet of space below the top of the truck
bed;

vi. Pave, apply water, or apply (non-toxic) soil stabilizers on all unpaved areas
and staging areas at construction sites;

vii. Hydroseed or apply (non-toxic) soil stabilizers to inactive construction
areas (previously graded areas inactive for ten (10) days or more);

viii. Enclose, cover, water, or apply (non-toxic) soil stabilizers to exposed
stockpiles (dirt, sand, etc.);

ix. Install sandbags or other erosion control measures to prevent silt runoff to
public roadways, and all waterways;

x. Replant vegetation or distribute appropriate seed in disturbed areas as
quickly as possible.

SECTION 3. Monitoring

(A) The Tribal Department of Environmental Protection shall periodically monitor air quality
on the Rancheria.

(B) For each new commercial development project proposed on the Rancheria (proposed
project), the contractor shall implement a monitoring program for construction and
operational emissions, unless the Tribal Council anticipates no air emissions from both
the construction and operation of the proposed project. If the Tribal Council anticipates
air emissions from either the construction or operation of the proposed project, then a
monitoring program is required only for the portion of the proposed project that is
anticipated to produce air emissions. The monitoring program shall be in place before
any air emissions from the proposed project are anticipated to occur.

CHAPTER 5. EDUCATION

The Tribal Department of Environmental Protection shall develop and implement an educational
program that will educate the Tribal Members about the air quality effects of land use and
transportation decisions on the Rancheria. The program shall include staff attendance at
appropriate educational workshops, and staff meetings with planners, the United States
Environmental Protection Agency, and other tribal land use planners.

CHAPTER 6. ENFORCEMENT AND PENALTIES

SECTION 1. Enforcement Agency and Policy

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It is the policy of the Department of Environmental Protection to encourage informal, practical,
result-oriented resolution of alleged violations and actions needed to prevent damage to the
Rancheria resources or harm to the health, safety, or welfare of the Rancheria population.

Department of Environmental Protection shall be responsible for enforcing the provisions set forth
in this Ordinance. Should the Department of Environmental Protection determine that any person,
firm, corporation, or other legal entity is found to be violating the provisions of this Ordinance,
the Department of Environmental Protection shall consult with the Tribal Council to determine the
fines for each violation according to the severity of the violation.

SECTION 2. Enforcement Activities

If a written and verified complaint is filed with the Tribal Air Quality Control Officer and reviewed
by the Department of Environmental Protection alleging, or where the Tribal Air Quality Control
Officer shall have cause to believe, that any person is violating any air quality regulation, the
Department of Environmental Protection shall conduct a prompt investigation.

SECTION 3. Notice of Violation; Cease and Desist Order

(A) Notice of Violation. If the Department of Environmental Protection finds, after
conducting an investigation pursuant to Chapter 6, Section 2 of this Ordinance, that a
violation of any regulation exists, the Department of Environmental Protection shall
promptly notify the alleged violator and the Tribal Council in writing.

(1) In the case of an apparent violation of this Ordinance, the Department of
Environmental Protection is authorized to issue a Notice of Violation to the
person(s) responsible for the violation, and, if the apparent violation occurred on
property owned by a person other than the alleged violator, a Notice of Violation
shall also be issued to the owner/operator.

(B) Cease and Desist Order. Should the violator(s)/owner/operator(s) fail to remedy the
violations, the Department of Environmental Protection is authorized to issue a Cease
and Desist Order to prevent the violation from continuing.

(1) Failure to comply with a Cease and Desist Order constitutes a violation of this
Ordinance.

If a Cease and Desist Order is issued without an accompanying Notice of Violation, the Order will
inform the recipient that failure to comply with the Order will constitute a violation of this
Ordinance which will result in the issuance of a Notice of Violation and may result in the

imposition of civil penalties.
SECTION 4. Informal Conferences

The Department of Environmental Protection shall afford the violator or his/her representative
reasonable opportunities to discuss proposed enforcement actions at an informal conference prior
to taking further enforcement action, unless the Department of Environmental Protection
determines that there may be either imminent environmental damage to the Rancheria and/or
detrimental impact on the health, safety, or welfare of the Rancheria population. Informal

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conferences may be used at any stage in the enforcement proceedings, except that the Department
of Environmental Protection may refuse to conduct informal conferences with respect to any
matter then pending before the Tribal Council.

SECTION 5. Reports Required

The Department of Environmental Protection shall retain written documentation of all conferences
including the date/time, location, attendees, discussed matter, and any decisions reached with
respect to further enforcement action.

SECTION 6. Enforcement Hearings

Should the violator and the Department of Environmental Protection be unable to resolve the
matter via informal conference, the Tribal Council is authorized to conduct adjudicatory hearings
to determine if a violation of this Ordinance has occurred. At the hearing, the Department of
Environmental Protection, in cooperation with the Tribal Air Quality Control Officer, shall present
the case to the Tribal Council to establish that the violator(s) charged has/have committed a
violation of this Ordinance. Any violator charged shall be entitled, at his/her expense, to retain
counsel or another representative.

(A) Burden of Proof. The Department of Environmental Protection shall have the burden of
proving that a violation of this Ordinance has occurred and that the person charged was
responsible for said violation. The Board of Directors may determine that a violation of
this Ordinance has occurred if it finds that the charges are’ supported by substantial
evidence that supports a finding that a violation has occurred.

(B) Enforcement Orders. Within thirty (30) days after the date of any enforcement hearing,
the Tribal Council shall issue a written decision. Should the Board of Directors determine
that the violation has occurred and that the person(s) charged was (were) responsible for
said violation, the Tribal Council will include an Enforcement Order with its decision.

SECTION 7. Civil Penalties and Corrective Action

An Enforcement Order shall direct anyone found to have committed a violation of this Ordinance
to take such corrective action as the Tribal Council deems appropriate under the circumstances.
An Enforcement Order may impose civil penalties in accordance with a schedule of civil penalties
prescribed in the Tribal Council’s rules. Alternatively, an Enforcement Order may impose civil
penalties if a person found to have committed a violation of this Ordinance does not take corrective
action in accordance with the Order within a prescribed period of time. If anyone who has been
found to have committed a violation does not take corrective action within the prescribed period
of time, an appropriate department or agency of the Tribal government may take the necessary
correction action, in which case, the amount of any civil penalty shall be increased by double the
actual costs incurred by the Tribal department or agency taking the corrective action.

(A) Emergency Orders. Notwithstanding any other provision of this Ordinance, the Tribal
Council may issue an emergency order if the Tribal Council determines that a failure to
comply with this Ordinance presents an imminent and substantial threat to the public

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health, welfare, or environment, and further determines, following consultation with the
Tribe’s attorney(s), that it is not practicable to otherwise assure prompt protection of the
public health, welfare, or environment. Any such order shall be effective immediately
upon issuance and shall remain in effect for a period not to exceed sixty (60) days.

SECTION 8. Judicial Enforcement

The Tribal Court shall have jurisdiction over all cases and controversies arising under this
Ordinance.

(A) The Department of Environmental Protection may request the Tribal Council to authorize

(B)

the Department of Environmental Protection to file an action in Tribal Court for a
temporary restraining order, preliminary/permanent injunction, or any other relief
provided by law, including the assessment and recovery of civil penalties, clean up, and
any other administrative costs associated with the enforcement of this Ordinance (except
that any suit against the Tribe, a tribal department, or agency shall be for injunctive relief
only and not for penalties or other monetary damages, to which the Tribe does not waive
its sovereign immunity), in any of the following instances:

(1) Whenever a person has violated, or is in violation of, any provision of this
Ordinance, including but not limited to a regulation, permit or order issued pursuant
to this Ordinance;

(2) Whenever a person submits false information under this Ordinance or regulations
promulgated under this Ordinance; or

(3) Whenever a person is creating an imminent and substantial endangerment to the
public health, welfare, environment, or cultural resources of the Tribe, in which
case the Tribal Council shall request the Department of Environmental Protection
to pursue injunctive relief but not the assessment of penalties, unless the
endangerment is caused by a violation as specified in paragraphs | and 2 above.

Any person who, in violation of this Ordinance, emits air pollutants or hazardous air
pollutants into the air within the boundaries of the Rancheria shall be liable for all costs
necessary to, or associated with, clean up, abatement or closure of the source and
restoration of the quality of air of the Rancheria to its condition as it existed immediately
prior to the emissions

SECTION 9. Special Provisions for Tribal Departments and Agencies

In such case that an allegation of a violation committed by the Board of Directors or any Tribal
agency or department is presented to the Department of Environmental Protection, the Department
shall inform the Board and the Chairperson of the Board shall convene a special meeting of the
Board to consider the initiation of action to ensure compliance with this Code.

CHAPTER 7. SEVERABILITY AND SOVEREIGN IMMUNITY

SECTION 1. Severability

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If any provision of this Ordinance, or the application thereof, is held invalid, the remainder of this
Ordinance, or application of such provisions, shall not be affected.

SECTION 2. No Waiver of Sovereign Immunity

Nothing in this Ordinance is intended to, nor should be interpreted as a waiver of the Tribe’s
sovereign immunity from unconsented lawsuit, or as authorization for a claim for monetary
damages from the Tribe.

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CERTIFICATION

The foregoing Air Quality Ordinance was presented at a General Membership Meeting held on
April 27, 2019, and was approved with a quorum present and such Ordinance has not been
rescinded or amended in any way.

Cit— 4 -27-2el 9

Chris Wright ~ Date
Chairman
: | 4 -27- 2614
DD age Kge
Margie Rojes Date
Secretary/Treasurer
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Title 7. Air Quality Ordinance — Adopted by Tribe 04/27/19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Adry_creek%3A65b3a79c313d1e6c. Public record. Not legal advice.