December 5, 2003

Horace Pipe
25300 366 Street SW
Makoti, ND 58756

Re: Department of Interior – Notice of Intent, Fort Berthold Oil Refinery

Dear Horace Pipe,

Thank you for the opportunity to comment on the notice of intent to construct an oil refinery on the Fort Berthold reservation. The Indigenous Environmental Network (IEN) has a number of requests, concerns and questions to raise for inclusion in the Environmental Impact Statement (EIS) scoping process that is currently open for comment. IEN has been contacted by concerned tribal members of the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara (MHA) Nation.

This leads to our first concern about the scoping process itself. We wish to request for a 60-day extension for comment period on the Notice of Intent published November 7, 2003. Because a refinery is a highly technical facility, and because requests from reservation residents for the technical specifications for the refinery have not been filled, there is much more research that has to happen before concerned tribal members feel they can make fully informed comments. The notice of intent uses the words, "state-of-the-art facility" and "most technologically advanced refinery". This gives the concerned tribal members and us no information on the specifics of the refinery itself or why this one will be any better than any other refinery. We really do need the technical specifications on the refinery to make fully informed comments to the scoping process. Please release the information as initially promised to reservation residents during their scoping process and give us at least 60-days to respond.

We are sure the Mandan, Hidatsa, Arikara (MHA) Nations’ Tribal Environmental Department will ultimately have a role in this entire National Environmental Policy Act (NEPA) process as well as any environmental regulatory role during the life span of the refinery. We would also request at this time copies of all tribal policies related to the their commitment to fulfill all provisions of NEPA. If our interpretation of this project is correct, the Tribal Council will be the owner/operator as well as the environmental regulatory agency for this project. We wish to be assured that the Tribal Council environmental department and court system has the ability to implement meaningful environmental compliance and enforcement actions. Documentation to support this process would be useful.

It is our understanding that through this current Notice of Intent, you are now officially making steps to comply with the provisions of NEPA. Earlier this year, a number of informational meetings were held in a number of reservation communities. Comment and input was solicited at that time. These informational meetings were prior to this official Notice of Intent published Friday, November 7, 2003. We are concerned about the value and inclusion in the Draft EIS of the concerns reservation residents raised at that time. While these meetings probably fulfilled some local tribal governmental obligation, we are unclear as to the relationship those informational meetings will have to this Notice of Intent and the Draft EIS process. To assure that input from these reservation meetings is included in the EIS, please include in the EIS the statutory authority under which these meetings were held and the process by which the input and comment was recorded, validated, and included.

Additional concerns for inclusion in the EIS are as follows:

1. The need to acquire baseline date on existing soil, ground water, surface water, air quality, and human health conditions. The Fort Berthold reservation is already surrounded by numerous energy projects. Most of them are related to coal, oil, or ethanol generating or production facilities. Existing pollution sources include numerous air releases, water discharge, and solid and hazardous waste disposal sites. To fully understand the environmental and health impacts of adding an oil refinery, it is important to know existing environmental and health conditions related to other sources. It was reported to us numerous reservation tribal members are having a number of health related problems. An assessment of human health conditions on and around the reservation would be essential to determine if a refinery further deteriorates health conditions. The Indian Health Service, Center for Disease Control, and Agency for Toxic Substance and Disease Registry will be crucial in making a determination of current human health conditions and levels of exposures as well as predicting health outcomes for short term pollution discharges as well as when refinery capacity is increased.

2. To our knowledge, many refinery sites throughout the country potentially become Superfund sites. We are concerned about future liability conditions for the Tribe as well as the BIA if the refinery site becomes highly contaminated. To avoid part of this liability, the BIA should take this into consideration when the BIA makes a determination of taking this land into trust status. The BIA will not take into trust status currently contaminated sites, why should it take one that potentially would have a high probability of becoming contaminated in the future.

3. Numerous heavy metals and other solid contaminates will have to be removed from the crude oil stock. Our concern are how and where will the hazardous solid waste be safely and securely disposed of and what are the liability issues resulting from this?

4. Refineries and the pipelines are known to burn, explode, leak and are a frequent source of fugitive emissions. Numerous chemicals have to be added to crude stock to facilitate the refining process. Our first concern is the health and safety of refinery workers. Adequate refinery operation training and hazardous material training is essential for their health and safety concerns. Second to that is access to adequate health care that is qualified to treat diseases that are commonly associated to working in a refinery. Another concern is the safety of the community surrounding the refinery. First, the local fire department and hospital need to be equipped and trained to fight refinery and pipeline fires, explosions and accidental releases of hazardous chemicals. Local emergency medical response teams also need to be trained and equipped to handle injuries associated to refinery and pipeline fires, explosions, and hazardous chemical exposure. Lastly, emergency evacuation plans for the local community need to be developed for those occasions when there are problems keeping accidental atmospheric hazardous chemical discharges confined to the refinery site.

5. There is discussion of pasturing buffalo on part of this land acquisition adjacent to the refinery. Blood and tissue sampling of the buffalo and other wildlife should frequently occur so assure that refinery discharges and emissions are not accumulating in the buffalo and other wildlife tissue. It would be advisable to do sampling of wildlife in the area before the refinery construction is started to assure there is no body burden of chemicals from other energy related industries accumulating in the area. Once the refinery starts production, it may be difficult to determine the sources of wildlife bioaccumulation of the various chemicals. Some of these chemicals may be used or discharged from similar industries. If new chemicals or chemical levels are detected after refinery start up in the buffalo pasture, sampling should expand to determine the scope and extent of the chemical contamination.

Related to the scoping process. There are categories we would like to recommend. These are:

1. Within the scoping process there needs to be focus on analyzing any disproportionate high and adverse effects the proposed facility would have on the tribal population, especially those vulnerable members that are elderly, children, pregnant women, and tribal members with weaken immune systems.

2. Conduct an environmental justice analysis that would look at certain demographic, geographic, cultural, factors that may demonstrate the tribal community is at higher risk from environmental hazards from the proposed facility.

3. This environmental analysis would include the identification of impacts to the cultural and spiritual values of the tribal members and the traditional community.

This concludes our brief comments. If you have any questions, please contact me at (218) 751-4967.

Sincerely,

Robert Shimek
Special Projects Coordinator
Indigenous Environmental Network

Cc:Alice Harwood, Acting Area Director,
Aberdeen BIA Area Office
Perry Baker, Superintendent, BIA Newton Office
Tom Goldtooth, IEN Director