INTERGOVERNMENTAL AGREEMENT BETWEEN

INTERGOVERNMENTAL AGREEMENT BETWEEN

THE SOUTHERN UTE INDIAN TRIBE

AND TRE STATE OF COLORADO CONCERNING AIR QUALITY CONTROL

ON THE SOUTHERN UTE INDIAN RESERVATION

THIS INTERGOVERNMENTAL AGREEMENT is made and entered into by and between

the SOUTHERN UTE INDIAN TRIBE (“Tribe”) and the STATE OF COLORADO (“State”).

i. PURPOSE AND SUMMARY OF THE AGREEMENT.

The purpose of this Agreement is to establish a single air quality program applicable to all

lands within the exterior boundaries of the Southern Ute Indian Reservation (“the Reservation Air

Program”). The Southern Ute Indian Tribe/State of Colorado Environmental Commission

(“Commission”) established under this Agreement shall promulgate rules and regulations for the

Reservation Air Program and shall conduct review of appealable administrative actions, pursuant to

laws enacted by both parties. Any United States Environmental Protection Agency (“EPA”)

delegation to the Tribe as contemplated in this Agreement shall be contingent upon and shall last

only so long as this Agreement is in effect and shall be exercised pursuant to this Agreement. The

Coromission shall be the air quality policy making and the administrative review entity for the

Reservation Air Program. When all conditions and terms of this Agreement are fully in effect, the

Tribe and the State intend that the Reservation Air Program shall be ireplemented and administered

by the Tribe, pursuant to a delegation from the EPA, through the use of the staff of the Tribe’s

Environmental Programs Division (EPD”), with the participation of the State’s Air Pollution

Control Division as outlined in this Agreement.

IL. BACKGROUND.

The Southern Ute Indian Reservation ("Reservation") is located in southwest Colorado in the

southern portions of La Plata and Archuleta Counties. Congress confirmed the boundaries of the

Reservation in the Act of May 21, 1984, Pub. L. No. 98-290, 98 Stat. 201, 202 (found at “Other

Provisions” note to 25 US.C.S. § 668) (“P.L. 98-290°). The Reservation encompasses

approximately 681,000 acres, of which approximately 308,000 surface acres are held in trust by the

United States for the benefit ofthe Tribe. Additionally, the Tribe owns the mmeral estate underlying

a majority of Reservation lands. As the result of the historical allotment, homesteading, and

restoration of undisposed of lands to tribal ownership, the Reservation is a checkerboard of land

ownerships, including: lands held in trust by the United States for the Tribe’s benefit; lands held in

trust by the United States for the benefit of individual tribal members; lands owned in fee by

members of the Tribe; lands owned in fee by non-Indians; and National Forest lands.

The Clean Air Act directs EPA to promulgate regulations specifying those Clean Air Act

provisions for which Indian tribes may be treated m the same manner as states for the purposes of

primacy in the development and implementation of air quality programs. 42 U.S.C. § 7601 (dj. EPA

promulgated such regulations on February 12, 1998. 63 Fed. Reg. 7253. Pursuant to the Clean Air

Act and EPA regulations, tribes have the flexibility to assume responsibility for administering some,

but not necessarily all, Clean Aix Act programs and preserving that flexibility is important to the

Tribe,

In July, 1998, the Tribe submitted an application for treatment as a state (“TAS application’).

In its application, the Tribe requested it be treated as a state with respect to the administration of

Clean Air Act programs over all land located within the exterior boundaries of the Reservation. The

specific purposes of the TAS application were to receive grant funding under section 105 of the

Clean Air Act and recognition as an “affected State” to comment on draft operating permits. The

Tribe asserted in its TAS application that it has jurisdiction to regulate all sources of air pollution

located within the Reservation's exterior boundaries under the Clean Air Act, including non-Indian

owned sources located on fee lands.

Tn its comments on the Tribe's TAS application, the State has objected insofar as the

application requests tribal Clean Air Act authority over non-Indian owned sources located on fee

land within the exterior boundaries of the Reservation. The State asserts that PL. 98-290 establishes

its jurisdiction to regulate non-Indian owned sources located on fee lands within the Reservation

boundaries. There is no dispute as to the Tribe's jurisdictional authority to regulate sources of air

pollution located on trust lands within the Reservation and Indian-owned sources located on fee land

within the Reservation,

The purpose of PL. 98-290 was to avoid long and costly litigation over issues dependent on

reservation or Indian country status by confirming the boundaries of the Souther Ute Indian

Reservation and defining jurisdiction within such reservation. Despite the enactment of P.L. 98-290,

the Tribe and the State do not agree as to terntorial and regulatory jurisdiction concerning the

administration of Clean Air Act programs relative to non-Indian air pollution sources on fee land

within the boundaries of the Reservation. Notwithstanding the Tribe’s and the State’s conflicting

jurisdictional assertions regarding the regulation of non-Indian sources of air pollution located on fee

lands within the boundaries of the Reservation, the Tribe and the State wish to work cooperatively to

develop a comprehensive air quality program applicable to all lands within the boundaries of the

Reservation to improve and protect the air quality on the Reservation. It is agreed that the air quality

program to be developed pursuant to this Agreement should reflect the particular interests of the

Tribe, yet remain compatible with Siate air quality goals. The State and the Tribe, as governments

that share contiguous physical boundaries, recognize that itis in the interest of the environment and

all residents of the Reservation and the State of Colorado to work together to ensure consistent and

comprehensive air quality regulation on the Reservation without threat of expensive and lengthy

jurisdictional litigation.

The Tribe and State agree that the establishment of a single collaborative authority for all

lands within the exterior boundaries of the Reservation best advances rational, sound, air quality

management and will minimize duplicative efforts and expenditures of monetary and program

resources by the Tribe and the State. The State and the Tribe also agree that the establishment of

such an air program would create the most readily defined regulatory environment for sources on the

Reservation. Therefore, this Agreement encompasses the reguiation of all air pollution sources on

the Reservation.

Ii. AUTHORITIES.

The Tribe is a federally recognized Indian tribe that is organized under a constitution,

approved by the Secretary of the Interior, pursuant to the Indian Reorganization Act of 1934, ch. 576,

AS Stat. 984 (codified as amended at 25 U.S.C. §§ 461, et seq.). The Tribal Council of the Southem

Ute Indian Tribe is authorized to act for the Tribe by the Constitution adopted by the Southern Ute

Indian Tribe and approved by the Secretary of the Interior on November 4, 1936, and approved as

amended on October 1, 1975.

Colorado is a state admitted to the United States of America on an equal footing, pursuant to

Art. IV, § 3 of the Constitution of the United States of America. The State of Colorado was duly

formed in 1876 under its Constitution and Enabling Act. The Governor of the State of Colorado is

empowered to act on behalf of the State pursuant to Art. IV of the Colorado Constitution and other

authorities.

In the Clean Air Act, Congress encourages cooperative activities and agreements between

adjoining governments for the prevention and control of air pollution. 42 U.S.C. § 7402. Moreover,

EPA strongly encourages tribal and State cooperation in the development of air programs. 64 Fed.

Reg. 8253,

IV. PRESERVATION OF JURISDICTION AND SOVEREIGN IMMUNITY.

Nothing in this Intergovernmental Agreement shall affect the respective jurisdictions of the

Tribe and the State as set forth in P.L. 98-290, until and unless changed by federal legislation. By

entering into this Agreement, neither the State nor the Tribe concedes or waives any legal arguments

concerning the authority to regulate non-Indtan air pollution sources located on fee lands within the

boundaries of the Reservation. Upon termimation of this Agreement, the parties acknowledge,

understand and agree that this Agreement shall not operate as a bar, waiver of any rights of the

parties, or in any respect affect the ability of any party to this Agreement to assert ifs arguments in

support of its authority to regulate non-Indian air pollution sources located on fee lands within the

boundaries of the Reservation.

Nothing in this Agreement shall be construed as constituting a waiver of any immunity by

either the Tribe or State for any purpose whatsoever.

V. PROCESS FOR ESTABLISHING THE RESERVATION AIR PROGRAM.

The Tribe and the State agree that establishing the Reservation Air Program will take many

steps and occur in phases. The parties set forth the phases here to serve as a context for the remainder

of the terms of this Agreement. A description of the phases also clarifies the particular aspects of

this Agreement that are operative at any given time.

A. Formation Phase. The Formation Phase is the time between execution of this

Agreement and the enactment of tribal and State legislation that approves of this Agreement and

creates the Commission as provided in Sections Vif and VII. in the Formation Phase, the Tribe and

the State will seek the enabling legislation. If EPA grants the portion of the Tribe’s TAS application

seeking grant authority only for the limited purpose of determining that the Tribe is eligible to

receive grant funding under section 105 of the Clean Air Act, the State will not contest this limited

EPA finding. To implernent the terms and conditions of this Agreement, the EPA will also have to

find that the Tribe has authority to and is eligible to implement a regulatory program under the Clean

Air Act. The Tribe wul incorporate this Agreement and the Commission’s role under this

Agreement in any amended TAS application or request for EPA delegation to the Tribe of Clean Air

Act programs. The Tribe and the State agree that they will cooperate to obtain this further finding

and approval from EPA as is necessary for and subject to the performance of this Agreement. The

parties will also seek federal legislation as set forth in this Agreement. During the Formation Phase,

the Tribe and the State will work cooperatively to administer and enforce an air quality program for

the Reservation, as provided in Section IX.

B. Development Phase. The Development Phase is the time period after enactment of

the tribal and State legislation creating the Commission and tts authority and before adoption of

federal legislation and delegation by the EPA of any Clean Air Act programs. In the Development

Phase, the Commission will determine which parts of the Clean Air Act or other air programs to

incorporate into the Reservation Air Program, based on State or other regulations as modified by the

Commission to address the particular local circumstances of the Reservation. The Tribe will then

apply for delegation of those programs from EPA, such delegation being conditioned upon

corapliance with this Agreement, including the Cormmission’s authority to participate under this

Agreement in the administration of the Reservation Air Program. The Commission will also adopt

procedural rules and regulations for the Reservation Air Program. The Commission will work

cooperatively with the Tribe’s EPD staffin the administration and implementation of the Reservation

Air Program, as set forth in Sections VII and VEU. The parties shall also diligently seek federal

legislation during the development phase.

c. Program Phase. The program phase is that time period after enactment of federal

legislation and after actual delegation of Clean Air Act Prograrns by the EPA. At that point all

components of this Agreement will be in effect.

Vi. =6CONDITIONS.

A. Legislative Ratification. Asacondition to implementation of this Agreement, the

parties agree that this Agreement must be approved by the Colorado General Assembly.

B. State Statutory Exactment, As an additional condition, the parties agree that the

state legslation needed to implement the terms of this Agreement, including authorization for

creation of a joint Southern Ute Indian Tribe/State of Colorado Environmental Control Commission,

shall be enacted by the Colorado General Assembly during the Second Regular Session of the Sixty-

Second General Assembly.

C. Tribal Emactment. As an additional condition, the parties agree that the Tribe,

through its Tribal Council, shalf enact such resolutions or ordinances approving and permitting the

implernentation of this Agreement, including authorization for creation of a joint Southern Ute

Indian Tribe/State of Colorado Environmental Control Commission, no later than January 26, 2000.

D. Agreement for Federal Enactment. The parties agree to support and to seek the

passage of federal legislation, as provided in Section XL The parties agree to seek and support

passage of such federal legislation during the Congressional session held during the year 2000. As

an additional condition, if such federal legislation is not enacted within two years of the effective

date of this Agreement, this Agreement shall become null and void.

VD. THE STATE/TRIBE ENVIRONMENTAL COMMISSION.

The Tribe and the State shall establish a joint Southern Ute Indian Tribe/State of Colorado

Environmental Control Commission (“Commission”), by the enactment of legislation by each party.

The Commission is not an agency of the State of Colorado nar the Southern Ute Indian Tribe, but is

a separate entity,

The Commission shall consist of six members, three of whom shall be appointed by the

Tribal Council of the Tribe and three of whom shall be appointed by the Governor. Commission

members shall serve for the terms and under the conditions specified in the enabling legislation. The

Commission shall annually elect a person to preside as chair. The chair shall alternate annually

between a tribal and State member. During their term of service, a member may be removed with or

without cause only by the authority that appointed that member.

The Commission shall only act by a majority vote of all of its members.

The purpose of the Commission is to establish the rules and regulations applicable to the

Reservation Air Program and conduct review of appealable administrative actions . Both the Tribe

and the State may advocate any particular interest or viewpoint to the Commission, but the

Commission is empowered to make rules and regulations for the Reservation Air Program and to

review appealable administrative actions taken by the Tribe. While this Agreement is in effect, the

Tribe and the State shall recognize and abide by the Commission’s decisions, and its rules and

regulations.

To carry out its functions, the Commission may call upon the employees of the Tribe’s

Environmental Programs Division and the State’s Air Pollution Control Division , as more fully set

forth in Section VII of this Agreement.

The duties of the Commission shall inchide the responsibility to:

(a) determine the specific programs under the Clean Air Act, or other air programs, that

should apply to the Reservation, by taking into account the specific environmental,

economic, geographic and cultural needs of the Reservation;

(b)

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(a)

(e)

(f)

(g)

(h)

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(k)

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promulgate males and regulahons that are necessary for the proper implementation

and administration of those programs , including determming which administrative

actions are appealable to the Commission;

establish procedures the Commission will follow in promulgating rules and

regulations, and for review of appealable administrative actions taken by the Tribe;

review and approve of a long-term plan, initially prepared by the Tribe, for

improving and maintaining air quality within the Reservation, which also takes into

account regional planning in the La Plata and Archuleta County region;

monitor ihe relationships among the State and tribal environmental protection

agencies to facilitate information sharing, technical assistance and training;

review administrative actions according to the Commission’s adopted administrative

procedures;

approve and adopt fees for permits and other regulatory services conducted by the

Tribe or the State, after considering a proposed fee schedule prepared by the Tribe,

and direct payment of fees by air pollution sources to the Tribe;

ensure consistency and adherence to applicable standards and resolve disputes

involving third parties;

review emission inventories as developed by the Tribe and State,

conduct public hearings pertaining to the adoption of rules and regulations, or

relating to review of appealable administrative actions, and issue orders resulting

from those proceedings;

request tribal staff to perform any administrative or clerical functions necessary to

issue orders and conduct Commission business, or the Commission at its option may

appoint a technical secretary to perform such duties, except that no authority shall be

delegated to adopt, promulgate, amend or repeal standards or regulations, or to make

determinations, or to issue or countermand orders of the Commission;

any other duties necessary to accomplish the purposes of this Agreement, and as

authorized by the State and tribal enabling legislation.

VUL ADMINISTRATION OF THE RESERVATION ATR PROGRAM.

The Commission is the policy making and administrative review authonty for the

Reservation Air Program. The Commission may call upon, either tribal or State staff for assistance

in carrying out its responsibilities pursuant to this Agreement. The Tribe and the State agree that

during the Development and Program Phases, tribal employees shall assume the primary role for

day-to-day admunistration and enforcement.

A. Daties of Tribe. The State and Tribe agree that the day-to-day administration and

enforcernent of the Reservation Air Program shall be the responsibility of the Tnbe. The Tribe agrees

that it shall administer and enforce the standards, rules and regulations adopted by the Commission

for the Reservation Air Program. The Tribe may also promulgate rules and regulations that are

consisient with the rules and regulations adopted by the Commission and necessary for the Tribe to

maintain its delegations from EPA obtained to perform this Agreement.

In addition to other responsibilities that the parties may agree are necessary for the effective

implementation of this Agreement, it is agreed that the administrative and enforcement

responsibilities of the Tribe shall inchide the responsibility to:

(a} prepare initial drafis of rules and regulations for the Reservation Air Program for

review by the State and, ultimately, for consideration by the Commission;

(b) administer all activities related to permits including, for example, permit application

review, permit issuance, permit modification procedures, and conduct all permit processing;

(c} collect data, by means of field studies and air monitoring conducted by the Tribe or by

individual stationary sources and mobile air pollution sources, and determine the nature and quality

of existing ambient air throughout the Reservation;

(a) conduct inspections of any property, prentises, or place within the Reservation with

respect to any actual, suspected, or potential source of air pollution or for ascertaining cornpliance or

noncompliance with any applicable requirements;

{e) furnish technical advice and services relating to air pollution problems and control

techniques;

(D initiate enforcement actions when the results of atmospheric tests conducted establish

that the ambient air or source of emission of smoke or air pollution fails to meet the applicable

standards;

(g) develop a long-term plan, for approval by the Cormmission, for improving and

maintaining air quality within the Reservation, which also takes into account regional planning in

the La Plata and Archuleta County region;

{h} prepare a fee schedule for approval by the Commission, and to collect said fees as are

necessary for the administration of the Reservation Air Program and the Commission expenses,

consistent with sub-section B below;

(G) expend and account for funds, either collected from air pollution sources or granted to

the Tnbe by the EPA to administer the Reservation Air Program, for reasonable and necessary

expenses to admunister the Reservation Air Program;

G) establish emission inventories;

{k} issue permits and enforce the terms and conditions of permits;

{1} gather information from sources of air pollution;

(m) issue cease and desist orders, and take other emergency actions as may be necessary to

protect the public health, welfare and the environment;

(n) issue notices of violation as may be required;

(co) require any air pollution source to furnish mformation related to source emissions or

to any investigation authorized by law or regulation, and to obtain from a court of appropriate

jurisdiction a subpoena to compel the production of necessary documents to obtain such information;

(p} prepare applications for delegation of programs from EPA, in furtherance of this

Agreement.

‘The Tnibe shall afford the State, through its Air Quality Control Division and Air Quality

Control Commission, the opportunity to participate in the carrying out of such responsibilities by the

Tribe, through appropriate notice, comment and consultation.

B. Funding for Commission and Program Costs. Once the Commission is established

and during the Program Phase of this Agreement, it 1s the intent of the Tribe and the State that

funding for administration of the Reservation Air Program and the Cormmissian’s expenses shall

come from fees and grants. Pursuant to Section Vil, the Commission shall establish fees for air

pollution sources and direct payment of those fees to the Tribe. The Tribe shall apply for and may

reccive grants from EPA for administration of the Reservation Air Program. From these revenues

Gi.e., fees and grants), the Tribe shali fund the staff and program costs necessary to perform the

Tribe’s duties under this Agreement . The Tribe shall pay the State for the personal services costs, at

a rate of compensation determined by contract, of any State employee who participates in the

administration of the Reservation Air Program pursuant to this Section VIII. [tis the intent of the

Tribe and the State that fees shall also be sufficient to cover the Commission’s necessary expeuses.

The parties agree that they may also jointly seek funding from EPA for the necessary expenses of the

Commission to perform its duties. To the extent such EPA funding is not obtained or if funding

from fees is not allowed by the Clean Air Act, the State and the Tribe each will be responsible for

funding associated with the participation of their representatives on the Commission. However,

State fanding for its expenses is conditioned upon appropriation or the availability of other state-only

funds that the State could use for this purpose.

xX. TRIBAL AND STATE COOPERATION DURING THE FORMATION AND

DEVELOPMENT PHASES OF THE RESERVATION AIR PROGRAM.

The parties recognize that the fulfillment of the purposes of this Agreement will require

communication, collaboration and cooperation among the State, Tribe, and federal governments,

State agencies such as the Department of Public Health and Environment and the Aw Pollution

Control Division, the Tnbe’s Environmental Programs Division, EPA, and the Commission. Such

cooperation is especially needed during the formation and development phases of this Agreement.

A. Air Program During the Formation and Development Phases,

During the Formation and Development Phases, the Tribe will work cooperatively with EPA

to allow direct EPA implementation of Clean Air Act requirements for sources located on trust lands

and Indian sources located on fee lands within the Reservation. With regard to Fee Lands, the Tribe

will not jurisdictionally challenge the State's administration of such programs with respect to non-

Indian owned air pollution sources located on fee lands within the Reservation. During the

formation and development phases, for regulation of non-fndian air pollution sources on fee lands,

the State and the Tribe shall participate together in regulatory activities. In its administration of

peonits for non-Indian air pollution sources on fee lands, the State shall:

(a} notify the Tribe upon receipt of permit applications and afford the Tribe an

opportunity to participate in the review of pemnit applications;

(b) afford the Tribe the opportunity to review and comment, within thirty G0) days, on

draft notices of violation, draft consent orders, draft compliance orders, and draft air

polhation source permits prepared by the APCD;

{c) afford the Tribe the opportunity to participate in source mspections and in

surveillance activities:

(d) notify the Tribe and provide for tribal participation in decisions concerning potential

enforcement actions, including penalties to be assessed, and participation in all notice

of violation conferences.

I. Funding during the Formation and Development Phases. During the

Formation Phase, the State will continue to assess and collect fees as provided by Colorado statute

and will expend such funds to administer the State program for non-Indian sources on fee lands. The

Tribe will use its own funds or may apply for EPA prants to fund its activities. During the

Development Phase, permitting fees and any other fees for non-Indian owned sources located on fee

lands will be divided between the Tribe and State in a manner that is commensurate with the

responsibilities, costs incurred, and time spent by each party with respect to such permits and such

division of fees shall be authorized pursuant to the State and tribal legislation contemplated herein.

The parties shall endeavor to reach agreement on the appropriate division of fees prior to the conduct

of any work related to such permits,

B. Other Cocperation during the Formation and Development Phases.

During the time period that the Commission is being created by State and tribal legislation,

and pnor to the time that EPA delegates specific programs to the Tribe , the Tribe and the State agree

to cooperate as follows:

i. Technical Assistance, The State, by and through the APCD, will advise the

Tribe about the kinds of technical assistance that it can provide. The Tribe, with the assistance of the

APCD, will develop technical assistance priorities. The APCD will make available technical

expertise from all APCD program areas to assist the Tribe m the development and management of

the Reservation Air Prograrn and to assist the Tribe in developing its own technical expertise in air

resource management. The Tribe and the APCD agree to exchange technical expertise regarding

matters of mutual interest. Unless otherwise required by state or federal law, the APCD shall not

share or release to any other governmental or private agency or person, without the written consent of

the Tribe, any information obtained by the APCD from the Tribe or mformation generated by the

APCD through technical assistance to the Tribe; provided, however, this confidentiality requirement

shall not apply to information which has already been disclosed to the public by the Tribal Council or

its representatives and information that the Tribe specifically approves for distribution to the public.

If the APCD receives a request under the state Open Records Act to disclose confidential

information, the APCD shall notify the Tribe of the request within a time sufficient to enable the

Tribe to assert its claim to confidentiality prior to the APCD producing any requested documents.

2. Training. Upon request, the Tribe will help APCD employees improve their

understanding of Southern Ute traditional values and practices, natural resource values, treaty and

other federally reserved rights, and retevant law enforcement policy issues. The APCD will provide

the Tribe with access to APCD iraining programs. To facilitate the attendance of tribal personnel at

APCD training prograras, the APCD shall notify the Tribe in advance of such programs.

3. Funding, During the Program Phase, the Reservation Air Program shall be

funded as set forth in Section VII above.

X ENFORCEMENT AND JUDICIAL REVIEW.

A. During Formation and Development Phase.

Prior to the formation of the Commission and the adoption of the federal legisiation and

actual EPA delegation of Clean Air Act programs, the parties agree that the State may exercise civil

and criminal enforcement jurisdiction over non-indians on fee lands within Reservation boundaries

for violations of applicable air quality regulations. Appeals of State air enforcement action and

other air quality related decisions may be brought in State court consistent with State law and

regulation, Pursuant to P.L. 98-290, the Tribe may exercise jurisdiction over Indians on all lands

within the boundaries of the Reservation, and over non-Indians on trust land, for violations of

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applicable tribal air quality regulations. Nothing herein is intended as restricting, diminishing or

defining the jurisdiction of EPA.

BR. During the Program Phase,

1. Civil Enforcement Action. Following the adoption of the federal legislation

and EPA delegation of Clean Air Act programs contemplated by this agreement, the Tribe will

exercise civil enforcement purisdiction over any persons on all lands within Reservation boundaries

for violations of the Reservation air quality program, subject to administrative review by the

Commission. Consistent with the federal legislation contemplated by this Agreement, final decisions

of the Commission will be subject to review in federal district court in accord with the provisions of

the federal Administrative Procedure Act.

2, Criminal Puforeement Action. Following the formation ofthe Commission

and the adoption of the federal legislation contemplated by this agreement, it is the intent of the

parties that BPA will exercise criminal enforcement jurisdiction over any persons on all lands with

Reservation boundaries for violations of the Reservation Air Program.

Xi, FEDERAL LEGISLATION,

The State and Tribe agree to seek cooperatively federal legislation to confirm the eligibility of

the Tribe to receive a delegation of authority to administer programs under the Clean Air Act for all

lands within the boundaries of the Reservation, contingent upon the continued existence of this

Agreement. The purpose of the federal legislation will be to facilitate the delegation of authority to

the Tribe pursuant to the terms and conditions of this Agreement and to provide an effective

mechanism for the enforcement of program requirements and for administrative and judicial review.

It is agreed that the parties will seek legislation whereby, notwithstanding any limitation contained

in P.L. 98-290 or any other lirnitation contained in federal law, the Tribe will be authorized to be

Treated as a State for Clean Air Act purposes for all lands within the Reservation and recognized as

eligible to receive a delegation of authority from EPA to administer programs pursuant to the Clean

Air Act, provided that this Agreement and the joint Southern Ute Indian Tribe/State of Colorado

Environmental Control Commission, established pursuant to State and tribal law as provided herein,

remains in effect.

XL 6TRISAL TREATMENT AS A STATE APPLICATIONS AND REQUESTS FOR

PROGRAM APPROVAL,

During the Development Phase, the Tribe shall apply to EPA for approval of Clean Air Act

programs and delegation to the Tribe of the authority to administer such programs with respect to all

lands within the Reservation, as determined by the Commission and subject to the terms of this

Agreement. The State agrees that it will not yurisdictionally challenge the Tribe's requests to EPA

for approval of these programs or delegation to the Tribe of the authority to administer Clean Air Act

programs with respect to the Reservation, including non-Indian facilities located or non-Indian

activities conducted on fee lands within the boundaries of the Reservation, provided such requests

are pursuant to the determination of the Commission and subject to the terms of this Agreement.

ti

For Indian tribes establishing eligibility pursuant to 40 C.F.R. § 35.226 (a), EPA may provide

financial assistance in an amount up to 95 percent (95%) of the approved costs of planning,

developing, establishing, or approving an air pollution control program, and up to 95 percent (95%)

of the approved cosis of maintaining that program. 40 C.F.R. § 35.205.

The Tribe and the State agree to cooperate in seeking from EPA any recognition of or

delegation to the Tribe necessary to carry out the terms and conditions of this Agreement. The State

agrees that it will support an amended or additional TAS application or request for program

delegation by the Tribe which incorporates the terms of this Agreement. The Tribe agrees that it will

not submut a request for approval of a Clean Air Act program or for approval of partial elements ofa

Clean Air Act program unless asked to do so by the Commission and in accordance with the

requirements contained in this Agreement.

AU. MISCELLANEOUS.

A. Effective Date. This Agreement shall begin and become effective when executed by

both parties,

B. Amendment. The parties may amend this Agreement from time to time in writing,

provided that such amendment must bear the signature of an authorized representative of each party.

This provision for amendment is not intended to grant to any party individually or to the parties

collectively any legislative authority to change State or Tribal law without the concurrence of the

appropriate legislative body.

C. Termination. This Agreement shall continue in effect until terminated by joint

agreement of the parties, provided, however, that either party may terminate the agreement contained

herein by giving advance written notice of one year to the other party. Any termination of this

Agreement shall serve to end the delegation from EPA to the Tribe to administer any Clean Air Act

programs delegated pursuant to this Agreement. The termination of this Agreement shall also

operate as an automatic repeal of the State and tribal legislation enacted pursuant to Section VI of

this Agreement.

D. Notices. Notices hereunder shall be in writing and shall be given by personal!

delivery or by deposit in the United States mail by certified mail, return receipt requested, postage

prepaid and addressed to the Tbe and the State at the addresses set forth below, or such other place

as is provided to the other parties by wriften notice:

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Southern Ute Indian Tribe Southern Ute Indian Tribe

Attention: Tribal Chairman with a copy to: Environmental Programs Division

P.O. Box 737 Attention: Director

Tgnacio, CO 81137 P.O. Box 737

Ignacio, CO 81137

State of Colorado Executive Director

Office of the Governor with a copy to: . Colorado Depariment of Public

136 State Capitol Health and Environment

Denver, CO 80203-1792 4300 Cherry Creek Drive South,

Building A, First Floor

Denver, CO 80246-1530

Attomey General

1525 Sherman Street, 7* Floor

Denver, CO 80203

Notice shall be effective as of the date of receipt

E, No Third Party Beneficiaries. This Agreement is made and entered into for the

sole protection and benefit of the Tribe and the State, and is not intended to create any benefit,

obligation, or cause of action, whether direct or indirect, for any party not a signatory to this

Agreement.

R, Severability. [fany provisions of this Agreement are determined to be prohibited by

or invalid under applicable laws, those provisions shall be ineffective only to the extent of such

prohibition or invalidity, without affecting the validity or enforceability of the remaining provisions

of this Agreement. The Tribe and the State agree to meet and negotiate in good faith to amend this

Agreement in the event any provisions are determined to be prohibited by or invalid under applicable

laws,

G. Complete Understanding. This Agreement is intended as the complete integration

of all understandings between the parties concerning the Reservation Air Program. No prior or

contemporancous addition, deletion, or other amendment to this Agreement shall have any force or

effect whatsoever, unless embodied in this Agreement.

H. Periodic Review. On the anniversary date of this Agreement or on some other

mutually agreed upon date, but in no event less than every three years, the parties to this Agreement

agree to meet and confer to discuss compliance, progress in implementation, whether amendments

are necessary, and other issues related to this Agreement.

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed.

SOUTHERN UTE INDIAN TRIBE _ STATE OF COLORADO

; >* i. CO .

1 ; I~ ; inn,

“BR : | Spl Jee... CL YAS

Howard D. Richards, Sr. “Vice: Chairman Bill Owens, Governor Date

Southern Ute Indian Tribal Council

)

Date: | JZcemBee (3/999 \ 6. :

; | Selb” 12113) 49

Ken Salazar, Attorney General Date

tee ee eee

14