MEMO TO FILE

DATE:		June 1, 2022

SUBJECT:	Ute Mountain Ute Indian Reservation, HP03 Hot Mix Asphalt Plant, Fann Contracting Inc., Environmental Justice 

FROM:	Daniel Fagnant, EPA Region 8 Air and Radiation Division

TO:		Source Files:
		205c AirTribal, UM, Fann Contracting, Inc., HP03 Hot Mix Asphalt Plant, 
		GEN-UM-000015-2022.001
		Docket ID: EPA-R08-OAR-2022-0297

On February 11, 1994, the President issued Executive Order 12898, entitled "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." The Executive Order calls on each federal agency to make environmental justice a part of its mission by "identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations."
      
The EPA defines "Environmental Justice" as the fair treatment and 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. The EPA's goal with respect to Environmental Justice in permitting is to enable overburdened communities to have full and meaningful access to the permitting process and to develop permits that address environmental justice issues to the greatest extent practicable under existing environmental laws. Overburdened is used to describe the minority, low-income, tribal and indigenous populations or communities in the United States that potentially experience disproportionate environmental harms and risks as a result of greater vulnerability to environmental hazards. 
      
This discussion describes our assessment of the potential environmental impacts to overburdened communities in connection with issuing this permit in Cortez, Colorado, within the exterior boundaries of the Ute Mountain Ute Indian Reservation.

Region 8 Air Program Determination
As described in the following sections of this memorandum, we conclude that issuance of the aforementioned permit is not expected to have disproportionately high or adverse human health effects on overburdened or any communities in the vicinity of the facility.

Permit Request

The EPA received a request for coverage from Fann Contracting Inc., under the General Air Quality Permit for New or Modified Minor Source Hot Mix Asphalt Plants in Indian Country (HMA General Permit) pursuant to the Clean Air Act (CAA), Tribal Minor New Source Review (MNSR) Permit Program. The project for which HMA General Permit Coverage is sought by Fann is the construction and operation of a portable HMA plant, facility name HP03, at the Weeminuche Pit, Milepost 1.5 US 160, near Cortez, Colorado, on Indian country lands within the Ute Mountain Ute Reservation (the Source or the permitted source). 

The Technical Support Document (TSD) accompanying this permit describes our analysis of the Applicant's Request for Coverage for the Project and the legal and factual basis for our approval.

The geographic area where the Project will be located is designated attainment, unclassifiable or attainment/unclassifiable under the CAA for all National Ambient Air Quality Standards (NAAQS) pollutants. 

The facility is located at: 

Latitude 37°00'31.8", Longitude109°00'42.0"
Montezuma County, Colorado


Environmental Impacts to Potentially Overburdened Communities

The EPA believes the human health or environmental risk addressed by this action will not have potentially, disproportionately high and adverse human health or environmental effects on communities of color, low-income or indigenous populations. The EPA's primary goal in developing the HMA General Permit is to ensure that air resources in Indian country will be protected in the manner intended by the CAA. 

The HMA General Permit will limit adverse impacts by restricting operations and emissions. In addition, the HMA General permit is part of a preconstruction permitting program for minor sources in Indian country that is comparable to similar programs in neighboring states that, upon promulgation in 2011, filled a regulatory gap that did not previously evaluate or restrict minor sources of emissions in Indian country, while the emissions from similar sources in State jurisdiction were regulated. 
      
This permit action would authorize the construction of a hot mix asphalt plant. The EPA reviewed the area around the facility encompassing a one- and three-mile radius from the location. EJScreen indicates there are no persons within a one-mile radius and twelve people who live within a three-mile radius. , The area within a three-mile radius encompasses the four corners of Utah, Colorado, New Mexico, and Arizona, as well as portions of the Ute Mountain Ute and Navajo Reservations. 

The EJScreen results indicate that the area within a three-mile radius of the project area exhibits an EJ index at the 92nd percentile, nationally, for ozone, meaning that 8 percent of areas nationally report higher results for that particular index (which is based on a combination of summer seasonal average of daily maximum 8-hour concentration in air (ppb) for ozone combined with population demographics) than the project area. This percentile suggests that there is a potential for an air quality issue in the area around the facility and a potential EJ concern. The EJScreen results also indicate that the incidence of people of color and low-income population in the area within a three-mile radius of the project area is 99% and 59%, respectively which is much higher than the State average for both.

This HMA plant would emit new ozone precursor pollutants. The operational limits set by the HMA general permit result in an estimated potential to emit of 20 tons of NOx and 24 tons of VOCs. The ozone precursor pollutants, namely NOx, would be emitted from stacks that are 12 feet aboveground or less. The Agency believes that the relatively small emission of ozone precursors in an area with no inhabitants within one mile is unlikely to present an impact to communities overburdened with ozone. The EPA does not attribute emissions from one source as a concern for impacting ozone concentrations or design values, as emissions tend to dissipate at short distances from the source boundary (less than 1 mile)

However, the Agency also considered a three-mile radius due to the lack of demographics in the one-mile radius of the source. As mentioned above, the three-mile radius resulted in a 92[nd] percentile for the EJ index, nationally, for ozone. The ozone value provided by EJScreen for the summer seasonal average of daily maximum 8-hour concentrations is 55.7 ppb. While a high ozone value nationally, this value falls in the 32[nd] percentile for the state of Colorado, indicating that this is not a unique environmental indicator for the local community within three miles of the source.

EJScreen does not directly model all Criteria Air Pollutants (e.g., NOx and VOCs). Instead, EJScreen uses a downscaling fusion model that relies on both air quality monitoring data from NAMS/SLAMS and numerical outputs from the Models-3/CMAQ. EJScreen also relies on the most recently available data for both environmental and demographic indices. There is the potential for considerable uncertainty in a screening analysis for ozone relying on EJScreen. 

EJScreen indicates the nearest regulated air facility for air pollution is 6.6 miles north (Geodyne Resources, facility ID CO0000000808300058, SIC Code 1311). Ozone daily AQI values for Montezuma county from 2015 to 2021 indicate a limited number of days occur in which the air quality index is "Unhealthy for Sensitive Groups", while most days are "Good" or "Moderate." 

The EPA sets National Ambient Air Quality Standards (NAAQS) for ozone. The HMA general permit was designed to be protective of the NAAQS and Region 8 therefore believes that the HMA General Permit is appropriately protective with respect to the Source. As stated previously, there is no population residing within one mile of the project area and the emissions from the source are expected to dissipate over short distances. EJScreen estimates that the approximate population within three miles of the source is twelve people. The nearest regulated source of air pollution to the source is 6.6 miles north and the AQI values for Montezuma County are generally "Good" or "Moderate." 

The Ute Mountain Ute Tribe Air Quality Program received copies of all materials related to the Request for Coverage under the HMA General Permit and was included in all communications with Fann regarding the request. Further, upon receipt, the EPA made all information related to the EPA's Approval for Coverage under the HMA General Permit accessible online to the general public for review until the approval was issued, during which time anyone could object to the appropriateness of this particular source's coverage under the HMA General Permit. The Agency is concurrently evaluating an application for a synthetic minor permit for the same source to allow the use of waste oil instead of diesel (waste oil is not permissible under the HMA General Permit). The Agency may revisit this HMA General Permit approval, if additional information makes apparent the need for additional protections. 

