DEPARTMENT GF ENVIRONMENTAL QUALlTY 

Post Ofiice Box 97 

Sacaron, kiizcna 85247 

(520) 562-2234. rn Fax: (520) 562-2245 

April 20,2001 

Laura Yoshii, Acting Regional Administrator 

U. S . ENVIRONMENTAL PROTECTION 

AGENCY - REGION IX 

75 Havlrthorne Street 

San Fraicisco, CA 94 105-3901 

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

Dear Ms. Yoshi: 

The Gila River Indian Community is in the process of developiilg a Tribal Impleillentation Plan 

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

of the Cleaii Air Act. The Coinmunity has prepared an eillissions inventory, is in the process of 

ii~stalling an anlbient air quality monitoring network and has prepared several hundred pages of 

draft tribal ordinances and technical suppal-t documents that will form the basis for the TIP. The 

first section of the TIP whiah establishes basic authorities has received initial approval born the 

Tribal Council and is being prepared for public comment aid filial adoption at this time. 

Importantly, the Community has developed a team of enviroimlental professionals, the majority 

of whom are Native American, to administer and elforce the TIP. This effort, when 

iinpleniented in conjunction with the Community's existing executive, administrative and 

judiciai systems, will result in a program for the protection of air qualiry that we believe will be a 

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

contin~~e to be aided by yo~u Agency and for that we are extremely grateful. 

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

EPA has a year ro 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 docunlents. This 

period of approxilnately two years before we have an approved TIP creates significant potelitial 

difficulty as far as the Conmunity's coiltinuing ability to exercise its autl~ority to protect and 

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

implementation more significant than in the area of regularing and permitting air pollution 

sources on Community land. I 

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Two piding principles are worthy of note about the Community's existing authority to regulate 

sources or1 Conlnlu~lity land. The Community believes these two principles are of specific 

relevance concerning regulation of sources on Indian lands during the period before OLU TIP is 

approved. 

. As has been recognized by the courts for decades, the Con~rn~mity, as a sovereign tribal 

government: has inherent regulatory authority to protect the health of its citizens and 

their environnlent. This authority includes a right to regulate those activities by both 

Indians and non'-~ndians that affect air quality. Tile Community has acted on that right 

and established a Medical Waste Management Ordinance in 1993 that regulates and 

permits the medical waste incinerator located witl~in the Lone Butte Industrial Pask on 

GRIC land. 

. In addition to its regulato~~ a~~thority as a sovereign government, a Tribe that meets the 

eligibility requirements in 40 C.F.R. $49.6 is to be treated in the same manner 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 dete~minalio~l that state and locally-issued permits can 

be effective in linliting 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 which they were issued has been approved as a component of a State Implementatiol~ Plan. 

.Although EPA has yet to adopt regulations to indicate l1ow it will implement this judicial 

determination, the Agency has pronlulgated 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 pronounce~nents is 10 create a criterion for the validity of state-enforceable 

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

Community has observed that the functional effect of the application of this criterion has been to 

allow states and localities with effective and enforceable pernlit programs to limit potential 

einissions froin per~nitted 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 pernlirs to lilmit potential emissions does not depend upon whether the 

permits are issued ~mder aSIP or are othe~wrise federally enforceable. This latter point is 

extremely important to the Community d~uing this two-year period before we will have an 

approved TIP. The Conxnuniry believes that its idlerent environmental regulatory authority 

when cornbilled with Region 9's determination in 1999 that the Coinmunity met the eligibilitjr 

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 nor yet 

been approved for inclusioll in an applicable SIP. As long as the state or tribal pernlits 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 concerns about this issue are more than theoretical. There are a number of 

existing and potenrial new sources that will be issued permits by the Commullity over the nest 

two years. As the foregoing makes clear, the Community is implementing an air quality pernlit 

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program that will be iilcorporated into its TIP. EPA's recognition of the Com-nunity's ability to 

' issue permits that are practically enforceable and can, therefore, limit a permittee's potential 

emissions, would be a clear recognition of tribal sovereignty and the legitimacy of the TIP 

process undel-way. 

Sincerely, *. 

Patricia S. Mariella, Ph.D. 

Executive Director 

cc: Donald R. Antone, Ss. Governor 

Rod Lewis, GRIC General Counsel 

Sack Broadhent, Air Division Director 

Doug McDanielj Project Coordinator 

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