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MEMORANDUM 

To: Federal Implementation Plan for Oil and Gas Production Facilities on Fort 

Berthold Indian Reservation or Mandan, Hidatsa and Arikara Nations Docket

From: Tina Ndoh, US EPA and Victoria Parker-Christensen, US EPA Region 8 

Date: August 1, 2012 

Subject: Environmental Justice Review: Oil and Gas Production Facilities on Fort Berthold 

Indian Reservation or Mandan, Hidatsa and Arikara Nations 

1.0 INTRODUCTION 

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on 

environmental justice. Its main provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and low 

income populations in the United States. 

EPA defines “Environmental Justice” to include meaningful involvement of all people regardless 

of race, color, national origin, or income with respect to the development, implementation, and 

enforcement of environmental laws, regulations, and polices. 

2.0 PUBLIC INVOLVEMENT 

The EPA is simultaneously publishing an interim final rule with a parallel proposed rulemaking 

which seeks comment on information found within the interim final rule. Note that Docket 

Number EPA-R08-OAR-2012-0479 is being used for both the interim final rule and the parallel 

proposed rule. 

To promote meaningful involvement, the EPA will solicit input from potentially affected 

stakeholders and communities during the public comment period for the proposed permanent 

rule by posting information about the proposed rule throughout the reservation at tribal offices, 

community centers and the Fort Berthold Community College and publishing a notice in five (5) 

local newspapers. In addition, the EPA will hold a public hearing on the Fort Berthold Indian 

Reservation during the public comment period. 

The public has full opportunity to comment on the proposed permanent rule that EPA is 

concurrently proposing with the interim final rule. By issuing the rule as an interim final rule, 

paired with a comment period for the proposed permanent rule, the EPA is providing as much 

opportunity for notice and comment as possible on the issues presented by the interim final rule. 

EPA will expeditiously and fully, consider any comments received on the proposed rule, and 

once we have completed our deliberative process, will make any necessary revisions in taking 

final action on the proposed rule. 
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While the EPA has determined that notice and comment are both contrary to the public interest 

and impracticable for the interim final rule, for the reasons stated in section I of the notice for the 

interim final rule, note that the public has had several opportunities to learn about, and even 

comment on, the substantive requirements contained in the interim final rule. The substance of 

many provisions in the interim final rule are similar to the requirements contained in the six 

permits for individual oil and gas production facilities on the Fort Berthold Indian Reservation 

that EPA proposed earlier this year. The EPA received comments from the public and the 

sources on those proposed permits and has taken those comments into consideration in 

developing the Federal Implementation Plan requirements. The substantive requirements of the 

Federal Implementation Plan are also similar to the conditions in the Consent Agreement Final 

Orders (CAFOs) under which the oil and natural gas production sources have been operating for 

nearly a year, and the public had notice of the CAFOs, which were posted on EPA’s Internet site 

for public review.1

 

3.0 NAAQS COMPLIANCE 

For purposes of Executive Order 12898 on environmental justice, the EPA has recognized that 

compliance with the National Ambient Air Quality Standards (NAAQS) is “emblematic of 

achieving a level of public health protection that, based on the level of protection afforded by a 

primary NAAQS, demonstrates that EPA’s issuance of a PSD permit for a proposed facility will 

not have disproportionately high and adverse human health or environmental effects on minority 

populations and low-income populations.” In re Shell Gulf of Mexico, Inc. & Shell Offshore, Inc., 

15 E.A.D. ___, slip op. at 74 (EAB 2010). This is because the NAAQS are health-based 

standards, designed to protect public health with an adequate margin of safety, including 

sensitive populations such as children, the elderly, and asthmatics. Although taken from the 

context of issuance of a PSD permit, this logic applies with equal force to the EPA’s issuance of 

a Clean Air Act Federal Implementation Plan. 

The EPA has determined that this rule will not have disproportionately high and adverse human 

health or environmental effects on minority, low income and indigenous populations because the 

rule ensures compliance with the NAAQS, as explained in section III.H of the notice for the 

interim final rule and the technical support document. And the NAAQS are set at levels intended 

to protect the public health, and therefore compliance with the NAAQS ordinarily is emblematic 

of achieving a level of public health protection that will not impose disproportionately high and 

adverse human health effects on minority, low-income, or indigenous populations. Moreover, 

as explained in section III.B of the notice for the interim final rule, the rule fills a regulatory gap 

and therefore provides environmental protection for all affected populations without having any 

disproportionately high and adverse human health or environmental effects on any population, 

including any minority, low income, and indigenous populations. 

As explained in the notice for the interim final rule, the rule may improve public health and 

welfare, now and in the future, by reducing volatile organic compounds (VOC) emissions that 

may contribute to adverse environmental and human health impacts. The reductions in VOC 

emissions associated with the rule are expected to benefit all populations living near the sources 

affected by this rule. We also note that these proposed standards may improve public health and 

welfare, now and in the future, by reducing HAP emissions that may contribute to adverse 

 

1

 EPA Administrative Enforcement Dockets, available at: http://yosemite.epa.gov/oa/rhc/epaadmin.nsf. 
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environmental and human health impacts. The reductions in HAP emissions associated with the 

rule are expected to benefit all populations living near the sources affected by this rule. 

4.0 DEMOGRAPHICS 

Additionally, the Agency has reviewed this rule to determine if there is an overrepresentation of 

minority, low income, or indigenous populations near the sources2

 such that they may currently 

face disproportionate risks from pollutants that could be mitigated by this rulemaking. This 

analysis only gives some indication of the prevalence of sub-populations that may be exposed to 

VOC or HAP pollution from the sources affected by this rulemaking; it does not identify the 

demographic characteristics of the most highly affected individuals or communities, nor does it 

quantify the level of risk faced by those individuals or communities. However, it was 

unnecessary to carry out these additional steps, because, as noted in the previous section, the 

rulemaking ensures compliance with the NAAQS and may reduce VOC and HAP exposure. 

The demographic data in Table 2.1 shows that several demographic categories exceed 20 percent 

of their corresponding national averages: 

• Native American = +64 percentage points or +5477% 

• Minority = +42 percentage points or +152% 

• Population under 18 = +6 percentage points or + 25 % 

 

 

2 Source information on oil and gas wells located within external boundary of Fort Berthold Indian Reservation 

provided by HPDI Inc. 2010 
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Table 2.1 Summary of Demographic Data Analysis 

The analysis of demographic data used proximity-to-a-source as a surrogate for exposure to 

identify those populations considered to be living near affected sources, such that they have 

notable exposures to emissions from these sources. The demographic data for this analysis were 

extracted from the 2010 census data, which were provided to the EPA by the United States 

Census Bureau. Distributions by race are based on demographic information at the census block 

level, and all other demographic groups are based on the extrapolation of census block group 

level data to the census block level. The socio-demographic parameters used in the analysis 

included the following categories: 

• Racial (White, African American, Native American, Other or Multiracial, and All Other 

Races); 

• Ethnicity (Hispanic); and 

• Other 

o Number of people below the poverty line, 

o Number of people with ages between 0 and 18, 

o Number of people greater than or equal to 65, 

o Number of people over age 25 without a high school diploma. 

In determining the aggregate demographic makeup of the communities near affected sources, the 

EPA focused on those census blocks within 3 miles of affected sources and determined the 

demographic composition of these census blocks and compared them to the corresponding 

compositions nationally. The radius of 3 miles or approximately 5 km is consistent with the 

POPULATION 6493 312861256

WHITE 1977 30% 226405205 72% -58%

AFRICAN AMERICAN 14 0% 39475216 13% -98%

NATIVE AMERICAN 4221 65% 3646995 1% 5477%

OTHER OR MULTIRACIAL 281 4% 43333840 14% -69%

MINORITY24516 70% 86456051 28% 152%

HISPANIC OR LATINO3272 4% 54181245 17% -76%

AGE 0 - 17 1955 30% 75217176 24% 25%

AGE 65+ 657 10% 40830262 13% -22%

NO HIGH SCHOOL DIPLOMA 383 6% 31914536 10% -42%

BELOW POVERTY LINE 838 13% 43487509 14% -7%

>= 1.2 of National Average

% 

DEMOGRAPHIC SUMMARY Change 1

NEAR 

SOURCE 

NATIONAL 

TOTAL

% OF NEAR 

SOURCE 

% OF 

NATIONAL 

Sources: The demographics are from the U.S. Census Bureau, 2010. Information on the facilities is from U.S. EPA.

1. Racial and ethnic categories overlap and cannot be summed.

2. The “Minorities” population is the overall population (in the first column) minus white population (in the second column).

3. The Census Bureau defines “Hispanic or Latino” as an ethnicity rather than as a racial category, Hispanics or Latinos may belong to any race.
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radius used in other demographic analyses focused on areas around potential sources.3456 To the 

extent that any minority, low income, or indigenous subpopulation is disproportionately 

impacted by the emissions as a result of the proximity of their homes to these sources, that 

subpopulation also stands to see increased environmental and health benefit from the emission 

reductions from for by this rule. 

Because this study area is primarily on a reservation, a second analysis examined if 

predominantly Native Americans block groups had other environmental justice concerns. Table 

2.2 compares demographic information for the Native American block groups to national 

averages. Besides race, the poverty rate and age demographics are the major differences between 

the predominately Native Americans and national averages. The overall study area has a poverty 

rate 7 percent below the national average, while the areas of concentrated native Americans has a 

poverty rate of 28 percent, which is 103 percent higher than the national average (28 percent vs. 

14 percent). 

Table 2.3 compares the Native American block groups with the white block groups. The Native 

American population is 520 percent higher than the in the predominately white block groups (71 

percent vs. 11 percent), poverty level 138 percent higher (28 percent vs. 12 percent), the 

population under 18 years of age is 40 percent higher (31 percent vs. 23 percent), and population 

below five years is 56 percent higher (9 percent vs. 6 percent). 

 

3 U.S. GAO (Government Accountability Office). Demographics of People Living Near Waste Facilities. 

Washington DC: Government Printing Office; 1995. 

4 Mohai P, Saha R. “Reassessing Racial and Socio-economic Disparities in Environmental Justice Research”. 

Demography. 2006;43(2): 383–399. 

5 Mennis J. “Using Geographic Information Systems to Create and Analyze Statistical Surfaces of Populations and 

Risk for Environmental Justice Analysis”. Social Science Quarterly, 2002;83(1):281-297. 

6 Bullard RD, Mohai P, Wright B, Saha R, et al. Toxic Waste and Race at Twenty 1987-2007. United Church of 

Christ. March, 2007.
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Table 2.2: Block Groups with 50% of More Native Americans 

Demographic 

Summary1

Native 

American 

Areas

% Of Native 

American 

Areas

National 

Totals

% Of 

National 

Totals

% Change

POPULATION 5,815 312,861,256

WHITE 1,437 25% 226,405,205 72% -66%

AFRICAN AMERICAN 7 0% 39,475,216 13% -99%

NATIVE AMERICAN 4,120 71% 3,646,995 1% 5978%

OTHER OR MULTIRACIAL 251 4% 43,333,840 14% -69%

MINORITY2 4,378 75% 86,456,051 28% 172%

HISPANIC OR LATINO3

260 4% 54,181,245 17% -74%

AGE 0 - 4 537 9% 20,465,068 7% 41%

AGE 0 - 17 1,826 31% 75,217,176 24% 31%

AGE 65+ 528 9% 40,830,262 13% -30%

NO HIGH SCHOOL 

DIPLOMA

496 9% 32,060,510 10% -17%

BELOW POVERTY LINE 1,643 28% 43,616,850 14% 103%

>= 1.2 times National Average

Sources: The demographics are from the U.S. Census Bureau, 2010. Information on the facilities is from U.S. EPA.

1. Racial and ethnic categories overlap and cannot be summed.

2. The “Minorities” population is the overall population (in the first column) minus white population (in the second column).

3. The Census Bureau defines “Hispanic or Latino” as an ethnicity rather than as a racial category, Hispanics or Latinos may belong to any race.

4. Where facility study areas overlap, the census block populations are only counted once. Therefore, a facility level total will not match this summary total.
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Table 2.3: Comparing Native American Block Groups to Remaining Study Area 

Demographic 

Summary1

Native 

American 

Areas

% Native 

American 

Areas

White Areas % White 

Area

% Change

POPULATION 5,815 9,976

WHITE 1,437 25% 8,593 86% -71%

AFRICAN AMERICAN 7 0% 20 0% -40%

NATIVE AMERICAN 4,120 71% 1,140 11% 520%

OTHER OR MULTIRACIAL 251 4% 223 2% 93%

MINORITY2

4,378 75% 1,383 14% 443%

HISPANIC OR LATINO3

260 4% 190 2% 135%

AGE 0 - 4 537 9% 590 6% 56%

AGE 0 - 17 1,826 31% 2,245 23% 40%

AGE 65+ 528 9% 1,573 16% -42%

NO HIGH SCHOOL 

DIPLOMA

496 9% 1,054 11% -19%

BELOW POVERTY LINE 1,643 28% 1,183 12% 138%

>= 1.2 times Total Study Area

Sources: The demographics are from the U.S. Census Bureau, 2010. Information on the facilities is from U.S. EPA.

1. Racial and ethnic categories overlap and cannot be summed.

2. The “Minorities” population is the overall population (in the first column) minus white population (in the second column).

3. The Census Bureau defines “Hispanic or Latino” as an ethnicity rather than as a racial category, Hispanics or Latinos may belong to any race.

4. Where facility study areas overlap, the census block populations are only counted once. Therefore, a facility level total will not match this summary total.