Complaint: Pollution measures relaxed by CDPHE leadership
By Bruce Finley
The Denver Post
Colorado officials responsible for controlling air pollution this month ordered employees to stop measuring surges of harmful sulfur dioxide, nitrogen dioxide and particulates, according to a whistleblower complaint filed Tuesday alleging a culture of approving permits for industrial polluters “at all costs” that sacrifices public health.
Colorado Department of Public Health and Environment air pollution control director Garry Kaufman on March 15 directed employees who conduct required modeling to estimate emissions of these gases to cease their work at scores of facilities where companies apply for and receive state permits, the three Air Pollution Control Division whistleblowers contend.
The pollution contributes to the unhealthy levels of ground-level ozone for which Colorado has been deemed a serious violator of federal health standards.
Among the allegations in the complaint filed by the Marylandbased Public Employees for Environmental Responsibility on behalf of the three state employees: managers told a Colorado health department modeler to falsify data from a Teller County gold mine “to ensure that no modeled violation would be reported.”
State health officials declined to discuss the complaint.
Instead, Colorado Air Pollution Control Division spokesman Andrew Bare sent The Denver Post a statement saying that, because officials are “going through a formal process” of examining employees’ claims, they cannot address details.
But generally, the statement said, “our modeling policies are in accordance with federal and state laws and we have carefully reviewed the relevant laws in consultation with both the Colorado Attorney General’s Office and the federal Environmental Protection Agency.”
The whistleblowers’ complaint, sent to the EPA’s inspector general, seeks a federal performance review and audit of Colorado’s Air Pollution Control Division. This division relies partly on EPA funding, and penalties could include loss of funding and of the federallydesignated authority for Colorado to issue permits that say how much pollution companies can emit into the air.
Air pollution division managers’ violation of the law is “contributing directly to chronic health problems, premature deaths and severe injury to the environment by permitting ever more dangerous emissions,” the complaint says.
Letters from PEER attorneys to Gov. Jared Polis, state health de- partment director Jill Hunsaker-Ryan, and four state lawmakers pointed out that disclosures made by state employees are governed by the Colorado Whistleblower Protection Act, which forbids retaliation against those who report legal violations. The attorneys asked to meet with Hunsaker-Ryan.
State air division supervisors apparently removed a guidance document for air quality permits from a state website in March and did not issue a public notice of their policy shift.
Victims in Colorado include “everybody who breathes the air,” attorney Kevin Bell said for PEER, a national legal organization dedicated to protecting environmental whistleblowers.
“This is a breakdown in the way the government of the state is supposed to function. It makes people more likely to have health issues down the road. It also exacerbates COVID-19. And it is really remarkable that every non-supervisory state employee who worked in this unit of the air division is speaking with one voice on this issue,” Bell said.
The 14-page complaint to the EPA inspector general — signed by state health department employees Rosendo Majano, DeVondria Reynolds and Bradley Rink — said the consequences of their agency’s relaxed permitting policy and a “culture of permitting at all costs” can be seen in the handling of specific industrial facilities.
The employees pointed to an asphalt and concrete plant, called the Martin Marietta Highway 34 Facility, north of Denver within the area where air quality long has flunked federal health standards for ozone air pollution.
This facility “was exempted from demonstrating compliance” with pollution limits, the employees said. And an oil and gas industry facility about 3 miles away — called the Extraction Oil and Gas Johnson’s Corner Production Facility, which began operating in 2018 — ran for awhile without a permit and was exempted from compliance with federal standards, the employees said.
“It is likely that the Johnson’s Corner facility is amplifying and making worse an already existing violation with negative implications for air quality and public health. These are only two small facilities located in an area saturated with hundreds of other facilities, all inside the ozone non-attainment area, and jointly emitting thousands of tons per year of one of the main ozone precursors, NO2,” they said.
“Had these sources been permitted in compliance with regulatory requirements, the corresponding facilities would have been required to implement control measures, use better technology or downsize their projects,” the employees said.
The whistleblowers continued: “Determining the actual status of the air quality in that area is part of CDPHE’s job, but that duty has been neglected for years, leading to the current crisis and the downgrading of Colorado’s (National Ambient Air Quality Standard) non-attainment status to ‘serious’ from ‘moderate.'” Colorado’s increasingly urbanized Front Range area that includes nine counties around Denver for years has flunked the federal air quality health standards set by the EPA. Last year, Polis acknowledged public health concerns as federal officials reclassified Colorado as being a “serious” violator, requiring stricter enforcement of pollution limits.
The Air Pollution Control Division’s statement said that “management has specified thresholds for modeling of minor source applicants that are consistent with EPA thresholds” and that “management has established a process where additional applications may be modeled with a goal of maximizing protections of public health within the limits of existing resources.”
Stricter enforcement in Colorado has meant health employees must issue permits setting limits on pollution from more facilities in an effort to reduce pollution as required under the Clean Air Act. Division managers’ statement said that “our policies for modeling minor sources satisfy the department’s obligations and protect public health and the environment.”