UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 5 77 WEST JACKSON BOULEVARD CHICAGO, IL 69604-3590 NOV 29° 1095 ERY TO THE ATTENTION OF (F199) Honorable John Engler Governar of Michigan Lansing, Michigan 48903 Dear Governor Engler: ‘Thank you for your October 27, 1995, letter to United States Environmental Protection Agency (USEPA) Administrator Carol Bromer, ‘The Administrator's office requested that I reply to your concerns. In that letter, you and Governar Tomy Thompson of the State of Wisconsin requested that, before USEPA further pursues resolution of the States' objection to the proposed Prevention of Significant Deterioration (PSD) Class I redesignation of the Forest County Potawatomi Comunity's lands, USEPA adopt rules regarding such redesignations and establish the process for dispute resolution under Section 164(e) of the Clean Air Act, 42 U.S.C. § 7474(e). ‘The provisions of the Clean Air Act related to PSD, USEPA'S implementing regulations (found at Title 40 Code of Federal Regulations sections 51.166 and 52.21), and related USEPA policy statements provide the necessary guidance and afford the flexibility for resolving these PSD redesignation issues. USEPA also is currently finalizing proposed revisions to its PSD regulations that will provide further guidance on issues related to redesignated state and ‘Tribal Class I areas and relatively minor clarifications to relevant regulations. Although we are currently in the process of finalizing proposed revisions to these PSD regulations, the proposed revisions will not materially address the process far resolving disputes between States and Tribes, and we believe that the existing guidance is adequate. Regarding the establishment of a formal process for dispute resolution, as previously stated in our August 24, 1995, letter to Russell Harding of the Michigan Department of Environmental Quality and Scott Peterson of Governar Thompson's office, Section 164(e) of the Clean Air Act gives USEPA hroad authority as to how to effect dispute resolutions between the States and/or ‘Tribes concerning PSD issues. ‘This flexibility allows USEPA to customize a process for each dispute which we believe will maximize the probability that resolution between the parties will be reached. In the present. case, USEPA believes that the best methodology to assist us in resolving differences is to provide a facilitator. This facilitator will assist us in tailoring the resolution process to best mediate the concerns over any possible adverse impacts that you and your constituents have raised and the concerns of the Forest County Fotawatami Comunity in seeking additional public health and welfare protection for its people and resources. The negotiation process can also be used to discuss any PSD permit Brine on Recyied Paperimplementation issues you wish, such as those previously discussed between your staff and the Cammity in the development of a draft memorandum of understanding. Along this line, USEPA has contracted with RESOLVE, Inc., to assist USEPA in facilitating the negotiations. To date, RESOLVE has contacted your dispute designee, Mr. Harding, with resumés of possible facilitators. Tt was our intent that once agreement was reached on a specific facilitator, USEPA, with the assistance of the facilitator, would arrange an in-person interview with each of the parties to discuss their perspectives and issues, so that we could begin to structure a dispute resolution process tailored to the specific needs of this case. After the interviews, USEPA, through the facilitator, would arrange an initial meeting of all the parties to agree on a dispute resolution process and to schedule a series of further meetings aimed at the parties resolving the disputed issues. If the parties ultimately cannot reach agreenent. among themselves, the Clean Air Act requires USEPA to resolve the dispute through rulemaking. RESOLVE, of course, does not have the authority to make any determination ar decision. You also stated in your letter that the dispute resolution process should be an open forum to resolve any and all issues surrounding the dispute. It is our belief that the issue of who is allowed to participate in these negotiations should be mutually agreed upon by the States and the Tribe as one part of the initial negotiation process. Also, the parties should agree at ‘that time on what issues they wish to discuss and need to have resolved. We strongly believe that the present dispute resolution process with RESOLVE should continue at this time, as it appears to be the best means to resolve issues that exist between the Tribe and the States of Michigan and Wisconsin. Furthermore, we believe that a negotiated agreement between the Tribe and the States is the better way to resolve the particular issues involved in this redesignation. We will contact Mr. Harding in the near future to see if you wish to continue participating in this opportunity for dispute resolution negotiations. If the States or the Tribe choose not to avail themselves of the Section 164(e) resolution process, USEPA will proceed with its rulemaking on the Forest: County Potawatomi Commmnity's request. USEPA will reschedule the redesignation public hearings and will establish an end to the presently open public cament period. Our responses to all significant public coments will the requested redesignation.os A similar letter responding to the concerns you raised is being sent to Governor Thompson, and a copy of that letter is enclosed. If you have any further questions or coments, please do not hesitate to contact me. Sincerely yours, gah wesginal wigned by Valdas V. Adamkus Valdas V. Adamkus daa Vs Monto Enclosure‘Tomy G. Thompson Governar of Wisconsin Al Mitham, chairman Forest county Potawatomi Executive Councilstandard bec's: other boots: official file copy w/attactment(s) iginator's file copy w/attachment(s) originating organization reading file w/attachment (s) ORA w/control slip AX w/control slip S. Dorsey via WPO K. Westlake via WFO M. Canavan via WPO M. Radel via WPO D. DeRoeck (GAQPS) via WPO D. LaRoche (GAR) via WFO V. Patton (0GC) via WPO ORA Reading file (AX~9508581) ARD Reading file AIRB Reading file ARD:AIRB:PGS:C.Blathras:odb:11/20/95 __FILE:C: \SERVER\GOVFCP-12.CONstandard boc's: official file copy w/attactment(s) criginator's file copy w/attachent(s) originating organization reading file w/attactment (s) other boc's: ORA w/control slip GRA Reading file (AX-9508581) ARD Reading file AIRB Reading file ARD:ATRB:PGS:C.Blathras:cdb:11/20/95 FILE: C: \SERVER\GOVFCP-5.CON,. CONTROLLED CORRESPONDENCE OFFICE OF THE REGIONAL ADMINISTRATOR (5RA-14) FROM: CONTROL NO: X9508581 RABK ES OMMYXGLKTHOMRS EK 11-3-95 HONORABLE TOMMY G. THOMPSON caer DUE DATE: 11-22-95 CONSTITUENT: EXTENSION: INTERIM: FINAL DUE DATE: ///29/7 5 SUBJECT REQUEST EPA ESTABLISH PROCESS FOR DISPUTE RESOLUTION REDESIGNATION OF FOREST COUNTY POTAWATOMI RESERVATION bY we Mas ASSIGNED/DATE: ggq fh pfs \ fos nis | SIGNATURE: RA SPECIAL INSTRUCTIONS / JUSTIFICATIONS): COURTESY COPEES. a Cows uicontrot stip Ax wreontrot sip sluirley Dorsey Coordinate Requests for Extensions With Appropriate ORA Staff Person: ORAC, 3-3018; ORA, 3-1080.