DENVER — The Environmental Protection Agency found “important concerns” with the way Colorado regulators review and issue permits to minor polluters such as mines, asphalt plants and oil and gas drilling rigs, and those problems risked further damage to the state’s already poor air quality, according to a 309-page report released last week.
The report — in response to a whistleblower complaint filed in 2021 by employees at the state’s Air Pollution Control Division — determined those charged with regulating how much pollution spews into the state’s air were lax in how they assessed the potential for emissions and that they failed to properly document how they made their decisions.
The Air Pollution Control Division issued air permits even when analyses indicated emissions would violate air quality standards and were not compliant with a state plan to improve air quality, the EPA found.
In one of the four air permits reviewed by the federal agency, the investigation found that the division divided one permit into two smaller projects, which meant a Teller County gold mine could meet a lower threshold for pollution and avoid more strict regulation.
The EPA’s report listed six recommendations for improvement while acknowledging that the Air Pollution Control Division already has started making some changes. The EPA wants the Air Pollution Control Division, which falls under the Colorado Department of Public Health and Environment, to keep more complete records and better document how it makes decisions on its permitting standards.
It also wants the agency to go back and review 11 permits that were flagged by the whistleblowers to see if they were properly issued and make necessary changes, the EPA report said. The state has until Oct. 21 to respond to the EPA’s findings.
Kevin Bell, a lawyer for the Public Employees for Environmental Responsibility, which filed the complaint on behalf of the whistleblowers, said the permitting problems were irresponsible and put the state further behind in its efforts to improve air quality.
Foul air continues to cause health problems, especially for people with asthma and other respiratory problems. Already this year, the EPA announced plans to downgrade Denver and the northern Front Range to “severe” violators of federal ozone standards, which would mean higher gas prices and more permitting for industries such as oil and gas, trucking and mining.
“The reason the air quality is so bad now is because of the policy that has been in place for a decade,” Bell said. “It’s been building up for decades and it’s going to take just as long to fix it.”
In 2021, three Air Pollution Control Division employees filed a whistleblower complaint to the EPA’s inspector general that accused the agency of ignoring the state’s plan to better regulate air polluters in order to lower greenhouse gas emissions and ozone pollutants.
They specifically identified 11 permit applications filed by companies that would qualify as minor polluters, meaning they release substances such as nitrogen dioxide and volatile organic compounds at levels that would require some oversight but not at the same level as major polluters such as Suncor Energy’s Commerce City refinery.
The three employees said the division had an official policy that prevented them from properly analyzing potential emissions and issuing the correct permits.
Colorado Attorney General Phil Weiser hired an independent law firm to review the complaints, and the investigation by national firm Troutman Pepper Hamilton Sanders LLP in September determined that a lack of guidance led the air pollution division to issue multiple air quality permits to facilities even after models that help predict harmful emissions showed those operations could violate federal air standards. However, the investigators did not find that managers intended to break the law.
The attorney general’s review found that Garry Kaufman, the then-manager of the Air Pollution Control Division, failed to disclose a conflict of interest with a Teller County gold mine. Kaufman is no longer division manager but continues to work at the state agency.
Trisha Oeth, interim environmental programs director at the Colorado Department of Public Health and Environment, said the agency is taking the EPA’s critique seriously.
“What we see in the EPA report is not a surprise,” she said. “Our commitment to getting it right is unwavering. It’s always been our intention.”
The agency is issuing new air modeling guidelines and improving its transparency around documenting those analyses, Oeth said. It also is improving coordination between those who write permits and those who do the modeling, which forecasts air emissions based on a mathematical formula that considers factors such as the size of smokestacks, what pollutants would flow through them and average weather conditions.
The air pollution division also has pledged to better document its decisions and be more transparent in how it makes its decisions, she said.
The EPA said it only reviewed four of the 11 permits that were listed in the whistleblower complaint. But those four revealed consistent problems and were enough to demonstrate shortcomings within the Air Pollution Control Division’s policies and practices, the report said.
KC Becker, the EPA’s Region 8 administrator, said even if all 11 permits were issued incorrectly, their damage to Colorado’s air quality wouldn’t have a significant impact. But there are hundreds and hundreds of minor-source air emission permits across the state and continued mismanagement would create a cumulative impact that would be harmful, she said.
“These are important practices for CDPHE to take up,” Becker said.
———
