MEMO TO FILE

DATE: July 12, 2012

SUBJECT: Federal Implementation Plan under the Clea n Air Act for Oil and Gas Production

Facilities on the Fort Berthold Indian Reservation; National Historic Preservation Act

FROM: Victoria Parker-Christensen, EPA Region 8 Air Program

TO: Docket

Section 106 of the National Historic Preservation A ct (NHPA) requires federal agencies to take into account the effects of their undertakings on histor ic properties and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportuni ty to comment with regard to such undertakings. Under the ACHP’s implementing regulations at 36 CFR Part 800, Section 106 consultation is generally with state and tribal historic preservation officia ls in the first instance, with opportunities for th e ACHP to become directly involved in certain cases. An “u ndertaking” is “a project, activity, or program fun ded in whole or in part under the direct or indirect ju risdiction of a Federal agency, including those car ried out by or on behalf of a Federal agency; those carr ied out with Federal financial assistance; and thos e requiring a Federal permit, license or approval.” 3 6 C.F.R. § 800.16(y).

Under the NHPA Section 106 implementing regulations , federal agencies consult with relevant historic preservation partners to determine the area of pote ntial effect (APE) of the undertaking, to identify historic properties that may exist in that area, an d to assess and address any adverse effects that ma y be caused on such properties by the undertaking. Spec ifically, Section 800.4(b)(1) of the regulations st ates that federal agency officials shall make a “reasona ble and good faith effort” to identify historic properties.

The EPA proposes 1 to promulgate a Reservation-specific federal imple mentation plan (FIP) under the Clean Air Act (CAA) to establish enforceable contro l requirements for reducing volatile organic compound (VOC) emissions from oil and gas productio n activities within the exterior boundaries of the Fort Berthold Indian Reservation (FBIR) in North Da kota. Specifically, the EPA is requiring owners and operators of oil and gas production facilities to r educe emissions of VOCs emanating from well completions, and from production and storage operat ions, as is already required by the North Dakota Department of Health for production facilities loca ted outside of Indian country, including outside of the FBIR 2

. This memorandum describes EPA’s efforts to identify historic properties and assess potential effects i n connection with implementing the FIP for oil and ga s production facilities in Dunn, McLean, McKenzie, Mercer, Mountrail and Ward Counties on the FBIR.

1 EPA is issuing this action as an interim final rule . As an interim final rule, this action is time-li mited. It will be effective from the date of signature until the date that EPA promulgates a final rule based on its proposal for a Reservation-specific FIP to regulate emissions from oil and natural gas productions facilities located on the FBIR and that final rule takes effect. EPA is proposing the Reservation-specific FIP concu rrently with this interim final rule. 2 North Dakota Century Code ( Chapter 23-25 Air Pollution Control ); Air Pollution Control Rules ( Article 33-15 ).Area of Potential Effects (APE)

Because the FIP will apply throughout the entire re servation, EPA is considering the reservation as th e area of potential effect (APE) as that term is defi ned in the NHPA Section 106 regulations at 36 C.F.R . § 800.16(d). The “area of potential effects” of an u ndertaking is defined as:

... the geographic area or areas within which an unde rtaking may directly or indirectly cause alterations in the character or use of historic pro perties, if any such properties exist. The area of potential effects is influenced by the scale and na ture of an undertaking and may be different for different kinds of effects caused by the undertakin g.

Region 8 Approach

The EPA has reviewed information from the National Park Service on registered historic places located within the APE. Although only one registered site may be within the FBIR boundary (see Appendix), the EPA anticipates that eligible historic properti es may be present within the FBIR. We are in the process of consulting with the Three Affiliated Tri bes’ tribal historic preservation officer (THPO) concerning the FIP, and have invited the THPO to pr ovide information concerning historic properties within the Reservation. We are also requesting the THPO’s views concerning potential effects of the FIP. Similarly, we are communicating with the Triba l government, inviting them to consult with us and provide comment concerning the NHPA as it relates t o this FIP.

Additional Future Efforts

The EPA may also pursue a programmatic agreement wi th the Bureau of Indian Affairs (BIA) and the Bureau of Land Management (BLM) to ensure that cult ural resources are not adversely affected and to meet our NHPA responsibilities relating to oil and gas development. Programmatic agreements (PA) are executed under 36 CFR §800.14(b). In a PA, an agenc y, the ACHP, THPO/SHPO, and other parties can agree on a process for considering historic propert ies with respect to an entire agency program or a l arge and complex project, such as the FIP. See U.S. Envi ronmental Protection Agency, Historic and Archaeological Resource Protection for USEPA Person nel (October 2009).

Bureau of Indian Affairs and the Bureau of Land Man agement Memorandum of Understanding

As a related matter, we note that the Bureau of Ind ian Affairs (BIA) and the Bureau of Land Management (BLM) also have roles regarding manageme nt of oil and gas activities on the FBIR. BIA and BLM have implemented a Memorandum of Understand ing (MOU, BLM-MOU-MT920-0121) describing each Agency’s responsibilities for the p release and postlease phase of oil and gas development, including compliance with requirements under the National Environmental Policy Act of 1969 (NEPA). The NHPA analysis and associated docum entation prepared by those agencies are included in their NEPA process. Importantly, we und erstand that the BIA and BLM coordinated efforts address NEPA and NHPA requirements prior to any sur face disturbance or subsurface drilling by oil and gas facilities. We further understand that on-site cultural resource surveys are conducted at proposed sites and recommendations and adjustments are made at that time to mitigate any potential impacts. Thi s process occurs independently of the EPA’s actions.Effect on Permitting of Facilities

The proposed rule is not a permitting program and t herefore does not impose (or exempt the facilities from) any CAA permitting requirements, including th e Prevention of Significant Deterioration (PSD) permitting requirements at 40 C.F.R. §52.21 and Fed eral Minor New Source Review for Indian country (FMNSR) permitting requirements at 40 C.F.R. §49.15 1. The purpose of this rule is to provide Federal enforceability for the use of VOC emission controls that are already being used as an industry standar d. Provided that the facilities are in compliance with the new rule, it will allow the facilities to take credit for the VOC emission reductions the controls provid e when calculating their potential to emit for determining applicability to the permitting require ments.

Tribal Consultation

To comply with our obligations under Section 106 of the NHPA and its implementing regulations at 36 C.F.R. Part 800, we are consulting with the Three A ffiliated Tribes’ tribal historic preservation offi cer (THPO) concerning the NHPA. The EPA sent a letter t o the Fort Berthold Three Affiliated Tribes THPO on July 12, 2012, and is waiting for the THPO response.

We are also consulting with the tribal government b y sending a letter on July 12, 2012, to the Tribal Chairman and Environmental Director, Three Affiliat ed Tribes inviting them to consult with us and provide comment concerning NHPA as it relates to th is FIP.Appendix: Registered Historic Places

The National Park Service maintains an internet res ource that was used to determine whether any registered historic places are within the external boundary of the FBIR: National Register of Historic Places database, http://www.nps.gov/history/nr/research/index.htm

An additional site was used to provide additional i nformation on these historic places: National Register of Historic Places, http://www.nationalregisterofhistoricplaces.com/

a. County information (i.e. Mountrail County) http://www.nationalregisterofhistoricplaces.com/ND/ Mountrail/state.html b. Historic Districts within a county (i.e. Mountrail County) http://www.nationalregisterofhistoricplaces.com/ND/ Mountrail/districts.html

The results of the database search indicated that t here are 40 registered cultural places within Dunn, McKenzie, McLean, Mercer, Mountrail and Ward Counti es. The historic properties are listed below:

County in Fort Berthold Indian Reservation

Registered Historic Place City Location Distance Outside External Boundary FBIR Dunn County 1 Dunn County Courthouse Manning 20 miles 2 Hutmacher Farm Manning 20 miles

3 Saints Peter and Paul Church New Hradec 38 miles McKenzie County

4 Birdhead Ranch House NE of Alexander 5 Fairview Lift Bridge Cartwright 54 miles 6 Grassy Butte Post Office Grassy Butte 25 miles

7 Sandstone School Keene 7 miles McLean County 8 Former McLean County Courthouse Washburn Approx. 36 miles 9 Holy Trinity Ukrainian Greek Orthodox Church Wilt on Approx. 50 miles 10 Ingersoll School Washburn Approx. 30 miles 11 McLean County Courthouse Washburn Approx. 36 mil es 12 Semevolos Farm Butte Approx. 50 miles 13 Soo Line Depot Wilton Approx. 50 miles 14 Zion Lutheran Cemetery, Wrought-Iron Cross Site Mercer Approx. 45 miles Mercer County

15 Beulah School Beulah Approx. 14 miles 16 Big Hidatsa Village Site 1 mile N of Stanton App rox. 20 miles 17 Fort Clark Archeological District Stanton Approx . 20 miles 18 Hazen High School Hazen Approx. 16 milesCounty in Fort Berthold Indian Reservation

Registered Historic Place City Location Distance Outside External Boundary FBIR 19 High Butte Effigy and Village Site Riverdale Add ress restricted

20 Knife River Bridge - 4 mile W & 1 mile N of Stanton Approx. 20 miles

21 Knife River Indian Villages National Historic Site Archeological District Stanton Address restricted Approx. 20 miles 22 Fred Krause House Hazen Approx. 16 miles 23 St. Paul’s Lutheran Church Hazen Approx. 16 mile s Mountrail County

24 Evans Site New Town Address restricted 25 Great Northern Railroad Underpass Stanley 21 mil es 26 Mountrail County Courthouse Stanley 21 miles Ward County 27 Andrew Carr, Sr. House Minot Approx. 27 miles 28 Eastwood Park Bridge Minot Approx. 27 miles 29 Levi Glick Round Barn Surrey Approx. 35 miles 30 Minot Carnegie Library Minot Approx. 27 miles 31 Minot Commercial Historic District Minot Approx. 27 miles 32 Minot Industrial Historic District Minot Approx. 27 miles

33 Our Savior’s Scandinavian Lutheran Church Coulee Approx. 37 miles 34 Soo Line Passenger Depot Minot Approx. 27 miles 35 South Prairie Community Hall Minot Approx. 27 mi les 36 Tufveson House Minot Approx. 27 miles 37 U.S. Post Office Minot Approx. 27 miles 38 Union National Bank and Annex Minot Approx. 27 m iles 39 Ward County Courthouse Minot Approx. 27 miles 40 Westland Oil Filling Station Minot Approx. 27 mi les

Thirty nine sites are located outside the external boundary of the Fort Berthold Indian Reservation. O ne site (Evans Site) is located near New Town, but bec ause the address is restricted the EPA has not determined whether it is within the Fort Berthold I ndian Reservation. New Town is, however, within the Reservation.