DEPARTMENT GF ENVIRQPIMENTAI- QUALlVY Post Office Do:: 97 Sacaron, krizcna 85247 (520)562-2234 * Fax: (520j 562-2245
April 20, 2001

Laura Yosl-~ii, Acting Regional Administrator 

### U. S



### .ENVIRONMENTAL PROTECT] ON AGENCY 

### - 

### REGIONIX 75 Hawthorne Street San Francisco. CA 94 105-3901

Re: Practical Enforceability of GRIC's Air Quality Permit Program

- Dear Ms. Yoshi:

The Gila River Indian Com~llunity is in theprocess of developi~lg a Tribal Implelllentation Plan ("TI-P")that'will meet therequirements of 40 C.F.R.Part 

### 49 as well as Sections 301(d) and 110 ofthe Clean Air Act. The Coinmunity has prepared an eillissioils inventory, is inthe process of iilstalliilg an ambient alr quality mon~toring network and has prepared several hundred pages of draft tribal ord~nai~ces and technical s~lppait documents that will form thebasis for the TIP. The first section ofthe TIP whiah establishes basic authorities has received initial approval £ram the Tribal Council and is being prepared for public comment and final adoption at this time. Importailtly,the Community has developed a team of environnlental professionals,the majoiiqr of whom areNative American, to adnlinister and enforcethe TIP. This effort, when implemented in conjunctioil with the Community'sexisting executive, administrative and judicial systems, will result in a progranl for theprotection of air quality that webelieve will be a illode1 for other tribes as well as states. Throughout this development process wehavebeen and continue to be aided by YOLKAgency and for that we are extremely grateful.
Complete adoption of our TIP and its submission are about a year away. We understand that EPAhas a year to act onour TIP (although any shorterperiod oftime would be greatly appreciated) In order to make the review process as efficient as possible, Doug McDaniel has put together a Region 

### 9 team that is working with us aswe develop the TIP documents. This period of approximately two years before we have an approved TIP creates significant potential difficulty asfar asthe Conlm~~niqr's continuing ability to exercise its authority toprotect and make decisions about its air quality. Nowhere isthe issue ofthe potential for delay in TIP implementation more significant tl~an in the area ofregulating and permitting air pollution
sources on Community land.

Page 1of 3Two guidingprinciples are worthy of note about the Community's existing authority to regulate

so~zrces on Conlrnullity land. The Community believes these two principles are of specific rele.vancecoilcerningregulation of sources onIndian lands during the period before omTIP is approved.



# . As hasbeen recognized by the courts for decades,the Conmullity, as a sovereign tribal govenlment, has inherent regulatory authority to protect the health 0.fits citizens 

### and their environnlent. This authority includes a right to regulate those activities by both Indians and no;-~ndians that affect air quality. The Community has acted on that right and established a Medical Waste Management Ordinance in 1993 that regulates and peimits the illedical waste incinerator located within theLone Butte Industrial 

### Park on GRICland.



# . In addition to its regulatoiy authoiity as a sovereigil government, a Tribe that meets the eligibility requirements in 40 C.F.R. $49.6is to be treated in the sameinanner as a state for purposes of exercising authority under the Clean Air Act.

In a series of decisions during 1995 and 1996by the U.S. Court of Appeals forthe District of Columbia Circuit, the court declared its deteiminaliollthat state and locally-issued permils can be effective in liilliting a source's potential to elnit air pollutants as long as the permits aretruly enforceable. This effectiveness exists even when neither the permits themselves nor theprogram under whchthey were issued has been approved as a component of a State hplementatioll Plan. Although EPAhas yet to adopt regulations to indicate how it will implement thisjudicial determination: the Agency has prorn~zlgated an Interim Policy and a series of discussion papers and policy memoranda that discussthis issue. The combined effect of thesejudicial decisions and EPA policy pronounceinents is to create a criterion for the validity of state-enforceable lilnits onpotential to emit based onwhat EPA calls "enforceability as a practical matter." The Coinmunity has observedthat the hlctional effect of the applicatioil ofthis criterion hasbeen to allo~r states and localities with effective and enforceable peinlit progranls to limit potential emissions froinperinitted sources and thereby avoid the applicability ofNew Source Review. the Title V Program, MACT requirements, etc. asto these sources. Moreover, the legal effectiveness of these permits to liinit potential emissions does not depend upon whether the pelmits are issued under a SIP or are otheiwise federally ellforceable. This latter point is extremely inlpoz-tant to the Community during this two-year period before we will have an approved TIP. The Coinmunity believes that its inherent eilvironnlental regulatory authority when con~biiled with Region 9'sdetermination in 1999that the Coinmunity met the eligibility requirements for "treatment as a state" under 40 C.F.R. $49.6 puts it in exactly the sameposition

as a state or locality that issues and enforces air quality permits under a program that has not yet been approved for inclusioil in an applicable SIP. As long as the stateor tribal pennits meet the "enforceable as a practical matter" criterion,thepermits are legally effective as far as limiting a source'spotential to emit.

The Community's conceins about this issue are more than theoretical. There are a number of existing and potential new sourcesthat will be issued permits by the Community overthe next two years. As the foregoing makes clear, the Cormnullity is implementing XI air quality perillit
Page 2 of 

### 3program that will be incorporated into its TIP. EPA'srecognition ofthe Co~~munity's ability to issue permits that are practically enforceable and can, therefore, limit a permittee's potential emissions. would be a clenr recognition of tribal sovereignty and the legitimacy of the TIP process underway.
Sincerely,



# ..

Patricia 

### S. Mariella, Ph.D. Executive Director

cc: Donald R.Antone, Sr. Governor Rod Lewis, GFUC General Counsel Jack Broadbent, Air Division Director Doug McDaniel, Project Coordinator

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