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 - REGION IX 

75 Hawthorne Street 

San Francisco. CA 94 105-390 1 

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

Dear Ms. Yoshi: 

The Gila River Indian Com~llunity is in the process of developi~lg a Tribal Implelllentation Plan 

("TI-P") that'will meet the requirements of 40 C.F.R. Part 49 as well as Sections 301(d) and 110 

of the Clean Air Act. The Coinmunity has prepared an eillissioils inventory, is in the 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 the basis for the TIP. The 

first section of the 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 are Native American, to adnlinister and enforce the TIP. This effort, when 

implemented in conjunctioil with the Community's existing executive, administrative and 

judicial systems, will result in a progranl for the protection of air quality that we believe will be a 

illode1 for other tribes as well as states. Throughout this development process we have been and 

continue to be aided by YOLK Agency and for that we are extremely grateful. 

Complete adoption of our TIP and its submission are about a year away. We understand that 

EPA has a year to act on our TIP (although any shorter period of time 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 as we develop the TIP documents. This 

period of approximately two years before we have an approved TIP creates significant potential 

difficulty as far as the Conlm~~niqr's continuing ability to exercise its authority to protect and 

make decisions about its air quality. Nowhere is the issue of the potential for delay in TIP 

implementation more significant tl~an in the area of regulating and permitting air pollution 

sources on Community land. 

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Two guiding principles 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.vance coilcerning regulation of sources on Indian lands during the period before om TIP is 

approved. 

. As has been recognized by the courts for decades, the Conmullity, as a sovereign tribal 

govenlment, has inherent regulatory authority to protect the health 0.f its 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 the Lone Butte Industrial Park on 

GRIC land. 

. In addition to its regulatoiy authoiity as a sovereigil government, a Tribe that meets the 

eligibility requirements in 40 C.F.R. $49.6 is to be treated in the same inanner as a state 

for purposes of exercising authority under the Clean Air Act. 

In a series of decisions during 1995 and 1996 by the U.S. Court of Appeals for the District of 

Columbia Circuit, the court declared its deteiminalioll that state and locally-issued permils can 

be effective in liilliting a source's potential to elnit air pollutants as long as the permits are truly 

enforceable. This effectiveness exists even when neither the permits themselves nor the program 

under whch they were issued has been approved as a component of a State hplementatioll Plan. 

Although EPA has yet to adopt regulations to indicate how it will implement this judicial 

determination: the Agency has prorn~zlgated an Interim Policy and a series of discussion papers 

and policy memoranda that discuss this issue. The combined effect of these judicial decisions 

and EPA policy pronounceinents is to create a criterion for the validity of state-enforceable 

lilnits on potential to emit based on what EPA calls "enforceability as a practical matter." The 

Coinmunity has observed that the hlctional effect of the applicatioil of this criterion has been to 

allo~r states and localities with effective and enforceable peinlit progranls to limit potential 

emissions froin perinitted sources and thereby avoid the applicability of New Source Review. the 

Title V Program, MACT requirements, etc. as to 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's determination in 1999 that the Coinmunity met the eligibility 

requirements for "treatment as a state" under 40 C.F.R. $49.6 puts it in exactly the same position 

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 state or tribal pennits meet the 

"enforceable as a practical matter" criterion, the permits are legally effective as far as limiting a 

source's potential to emit. 

The Community's conceins about this issue are more than theoretical. There are a number of 

existing and potential new sources that will be issued permits by the Community over the next 

two years. As the foregoing makes clear, the Cormnullity is implementing XI air quality perillit 

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program that will be incorporated into its TIP. EPA's recognition of the 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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