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MEMORANDUM To: Federal Implementation Plan for Oil and Gas Pro duction Facilities on Fort

Berthold Indian Reservation or Mandan, Hidatsa and Arikara Nations Docket

From: Tina Ndoh, US EPA and Victoria Parker-Christ ensen, 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 N ations

1.0 INTRODUCTION Executive Order 12898 (59 FR 7629, February 16, 199 4) establishes federal executive policy on environmental justice. Its main provision directs f ederal agencies, to the greatest extent practicable and permitted by law, to make environme ntal justice part of their mission by identifying and addressing, as appropriate, disprop ortionately 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 mean ingful involvement of all people regardless of race, color, national origin, or income with res pect to the development, implementation, and enforcement of environmental laws, regulations, and polices.

2.0 PUBLIC INVOLVEMENT The EPA is simultaneously publishing an interim fin al 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 sol icit input from potentially affected stakeholders and communities during the public comm ent 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 C ollege 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 p roposed 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 perma nent rule, the EPA is providing as much opportunity for notice and comment as possible on t he issues presented by the interim final rule. EPA will expeditiously and fully, consider any comm ents received on the proposed rule, and once we have completed our deliberative process, wi ll make any necessary revisions in taking final action on the proposed rule.2

While the EPA has determined that notice and commen t are both contrary to the public interest and impracticable for the interim final rule, for t he reasons stated in section I of the notice for th e interim final rule, note that the public has had se veral 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 simil ar to the requirements contained in the six permits for individual oil and gas production facil ities on the Fort Berthold Indian Reservation that EPA proposed earlier this year. The EPA receiv ed comments from the public and the sources on those proposed permits and has taken tho se comments into consideration in developing the Federal Implementation Plan requirem ents. 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 CAF Os, which were posted on EPA’s Internet site for public review. 1

3.0 NAAQS COMPLIANCE For purposes of Executive Order 12898 on environmen tal justice, the EPA has recognized that compliance with the National Ambient Air Quality St andards (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 b ecause the NAAQS are health-based standards, designed to protect public health with a n 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 app lies 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 in come and indigenous populations because the rule ensures compliance with the NAAQS, as explain ed in section III.H of the notice for the interim final rule and the technical support docume nt. And the NAAQS are set at levels intended to protect the public health, and therefore complia nce with the NAAQS ordinarily is emblematic of achieving a level of public health protection th at will not impose disproportionately high and adverse human health effects on minority, low-incom e, or indigenous populations. Moreover, as explained in section III.B of the notice for the interim final rule, the rule fills a regulatory ga p 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 ru le, the rule may improve public health and welfare, now and in the future, by reducing volatil e organic compounds (VOC) emissions that may contribute to adverse environmental and human h ealth 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 pro posed standards may improve public health and welfare, now and in the future, by reducing HAP emi ssions that may contribute to adverse

1 EPA Administrative Enforcement Dockets, available at: http://yosemite.epa.gov/oa/rhc/epaadmin.nsf.3

environmental and human health impacts. The reducti ons 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 nea r the sources 2 such that they may currently face disproportionate risks from pollutants that co uld be mitigated by this rulemaking. This analysis only gives some indication of the prevalen ce of sub-populations that may be exposed to VOC or HAP pollution from the sources affected by t his rulemaking; it does not identify the demographic characteristics of the most highly affe cted individuals or communities, nor does it quantify the level of risk faced by those individua ls or communities. However, it was unnecessary to carry out these additional steps, be cause, as noted in the previous section, the rulemaking ensures compliance with the NAAQS and ma y reduce VOC and HAP exposure. The demographic data in Table 2.1 shows that severa l 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 w ithin external boundary of Fort Berthold Indian Res ervation provided by HPDI Inc. 20104 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 pro vided to the EPA by the United States Census Bureau. Distributions by race are based on d emographic information at the census block level, and all other demographic groups are based o n the extrapolation of census block group level data to the census block level. The socio-dem ographic parameters used in the analysis included the following categories:

• Racial (White, African American, Native American, O ther 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 o f 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 a pproximately 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% MINORITY 2 4516 70% 86456051 28% 152% HISPANIC OR LATINO 3 272 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 % Change DEMOGRAPHIC SUMMARY 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 popul ation (in the first column) minus white population (in the second column). 3. The Census Bureau defines “Hispanic or Latino” a s an ethnicity rather than as a racial category, Hi spanics or Latinos may belong to any race.5

radius used in other demographic analyses focused o n 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 proxim ity of their homes to these sources, that subpopulation also stands to see increased environm ental and health benefit from the emission reductions from for by this rule. Because this study area is primarily on a reservati on, a second analysis examined if predominantly Native Americans block groups had oth er 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 de mographics are the major differences between the predominately Native Americans and national ave rages. The overall study area has a poverty rate 7 percent below the national average, while th e areas of concentrated native Americans has a poverty rate of 28 percent, which is 103 percent hi gher 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 high er (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). Demo graphics of People Living Near Waste Facilities. Washington DC: Government Printing Office; 1995. 4 Mohai P, Saha R. “Reassessing Racial and Socio-ec onomic Disparities in Environmental Justice Researc h”. Demography. 2006;43(2): 383–399. 5 Mennis J. “Using Geographic Information Systems t o Create and Analyze Statistical Surfaces of Popula tions and Risk for Environmental Justice Analysis”. Social Sc ience Quarterly, 2002;83(1):281-297. 6 Bullard RD, Mohai P, Wright B, Saha R, et al. Tox ic Waste and Race at Twenty 1987-2007. United Churc h of Christ. March, 2007.6 Table 2.2: Block Groups with 50% of More Native Ame ricans Demographic Summary 1 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%

MINORITY 2 4,378 75% 86,456,051 28% 172%
HISPANIC OR LATINO 3 260 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 popul ation (in the first column) minus white population (in the second column). 3. The Census Bureau defines “Hispanic or Latino” a s an ethnicity rather than as a racial category, Hi spanics or Latinos may belong to any race. 4. Where facility study areas overlap, the census b lock populations are only counted once. Therefore, a facility level total will not match this summary total.7

Table 2.3: Comparing Native American Block Groups t o Remaining Study Area Demographic Summary 1 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%

MINORITY 2 4,378 75% 1,383 14% 443%
HISPANIC OR LATINO 3 260 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 popul ation (in the first column) minus white population (in the second column). 3. The Census Bureau defines “Hispanic or Latino” a s an ethnicity rather than as a racial category, Hi spanics or Latinos may belong to any race. 4. Where facility study areas overlap, the census b lock populations are only counted once. Therefore, a facility level total will not match this summary total.