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 SanFraicisco,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 therequirements of 40 C.F.R.Part 

### 49 aswell as Sections 301(d) and 110 of theCleaii 

### Air Act. The Coinmunity has prepared an eillissionsinventory, 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 ofthe TIP whiah establishes basic authorities has received initial approval 

### born the Tribal Council and is being prepared forpublic comment aidfilial adoption at this time. Importantly, the Community has developed a team of enviroimlental professionals,the majority of whom are Native American, to administer and elforcethe TIP. This effort, when iinpleniented in conjunction with the Community's existing executive, administrative and judiciai systems, will result in a program for theprotection of air qualiry that webelieve will be a liiodel for other tribes as well as states. Throughout this development process wehave 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. Weunderstand that EPAhas a year ro act on our TIP (although any shorter period of timewould be greatly appreciated). In order to make the review process as efficient as possible, DougMcDaniel has put together 

### a Region 

### 9 team that is working withus 

### aswe develop the TIP docunlents. This period of approxilnately two years before we have an approved TIP creates significantpotelitial difficulty as far as the Conmunity'scoiltinuing ability to exercise its autl~ority toprotect 

### and make decisions about its air qualiq~. Nowhere is the issue ofthe potential for delay in TIP implementation more significantthan in the area ofregularing and permitting 

### air pollution
sources on Community land.

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

sources or1 Conlnlu~lity land. The Communitybelieves these two principles are of specific relevance concerning regulation of sources on Indian lands during the period before OLUTIP 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 1993that 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. $49.6is to be treated in the same manner as a state forpurposes of exercising authority under the CleanAir Act.

In a series of decisions during 1995and 1996by the U.S. Court ofAppeals for the District of Columbia Circuit,the court declared its dete~minalio~l that state and locally-issued permits 

### can be effective inlinliting a source's potential to elnit airpollutants 

### as long as the permits 

### aretruly enforceable. This effectiveness exists evenwhen neither the permits themselves nor the program under which they were issued has been approved as a component of a State Implementatiol~ Plan. .Although EPAhas yet to adopt regulations to indicate l1ow it will implement thisjudicial determination,the Agency has pronlulgated an Interim Policy and 

### a series of discussion papers and policy memoranda that discuss this issue. The combined effect ofthesejudicial decisions and EPA policy pronounce~nents is 10 create a criterion forthe 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 ofthe application ofthis 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 ofNew Source Review, the Title V Program, MACT requirements, etc. asto these sources. Moreover, the legal effectiveness ofthesepernlirs to lilmit potential emissions does not depend upon whether the permits are issued ~mder a SIP or are othe~wrise federally enforceable. This latter point is extremely important to the Community d~uing this two-yearperiod before we will have an approved TIP. The Conxnuniry believes that its idlerent environmental regulatory authority when cornbilled with Region 9'sdetermination in 1999 that the Coinmunity met the eligibilitjr requirements for "treatment as a state" under 40 

### C.F.R. $49.6puts it in exactly the sameposition

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 arelegally effective as far as limiting 

### a source'spotential to emit.

The Community's concerns about this issue are morethan theoretical. There are a number of existing andpotenrial new sources that will be issued permits by the Commullity over the nest two years. Asthe foregoing makes clear, the Community is implementing an air quality pernlit
Page 

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

### issue permits that arepractically enforceable and 

### can, therefore, limit a permittee'spotential 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 McDanieljProject Coordinator

Page.

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