State air pollution control managers endangered the health of Coloradans by unlawfully approving noxious gas permits for industry without federally-mandated modeling or monitoring, according to a whistleblowing complaint filed Tuesday by technical employees inside the agency.
Three state employees claim in a complaint to the U.S. EPA Office of Inspector General that their leaders ordered them in mid-March to stop performing modeling required by the Clean Air Act. The whistleblowers from the Air Pollution Control Division, who run the computer models to predict how much pollution will result from a company’s activities, say their managers bypassed modeling rules in order to speed permits and avoid a paper trail should the state be sued by environmental groups.
Modeling for air pollution permits is increasingly controversial, as environmental advocates and neighborhood groups demand Colorado spend more money on real-time monitoring and analysts. At the legislature and in re-permitting hearings, they are demanding more monitoring instead of imprecise predictive modeling, to combat both local toxins and emissions creating greenhouse gases.
The whistleblowers say the alleged halt to modeling required by the federal Clean Air Act is part of a yearslong pattern of unlawful state actions, all of which increased health-damaging nitrogen dioxide and sulfur dioxide pollution in Colorado. Loose permitting also pushed the state deeper into “non-attainment” of U.S. air standards that will result in new industrial and driving sanctions, the state employees claim.
The alleged policy change by Air Pollution Control Division leaders is “the latest and most concrete instance of a pattern of unlawful conduct which is directly responsible for Colorado’s precipitous decline in air quality in the last decade,” according to the employee complaint, filed Tuesday with the EPA’s Office of Inspector General in Washington, D.C.
The complaint includes a sample list of “unlawfully issued permits” to Colorado industrial operations that range from asphalt plants, to coal mines, to oil drilling pads, to meatpackers, to a gold mine. The complaint goes further to say that not only were they blocked from modeling in permitting a gold mine, but one of the state modeling specialists was “ordered to falsify data” to avoid the model predicting a violation.
The complaint does not accuse any of the companies seeking permits for any wrongdoing, focusing instead on the state’s responses to permit applications.
The complaint describes in detail a leadership culture of “approving permits at all costs” at APCD and its overarching agency, the Colorado Department of Public Health and Environment. Employees say the division enforces certain standards only when an individual permit might draw extra public attention.
“Public scrutiny is the only criteria that CDPHE is concerned about when enforcing, or abstaining from, the National Ambient Air Quality Standards, not legal obligations or concern for public health and the environment,” the complaint reads.
In order to protect the identities of whistleblowers, the EPA Office of Inspector General will not acknowledge receipt of a complaint after it is filed, a spokesman said in an email. The options for handling such a complaint range include declining to act, opening an investigation or referring it to the FBI or another agency.
Worsening air quality is a long-time problem
The noxious emissions the whistleblowing employees claim are being illegally ignored contribute to high concentrations of ozone along the Front Range, which spikes to levels dangerous for human health on hot Colorado days. The Denver metro area has been under heightened EPA scrutiny for ozone for decades, and the state was notified that it faces demotion to an even lower attainment category in 2022 that will force state regulators to clamp down harder on stationary sources such as oil drilling or asphalt plants, and mobile emissions from vehicles.
Oil and gas operations already have new sets of rules meant to curb emissions that lead to ozone.
Nitrogen dioxide and sulfur dioxide are directly harmful to humans and animals if breathed in above federal standards. They also contribute to ambient development of ozone and particulate pollution, which further contribute to asthma and other respiratory issues, especially in Colorado, where intense sun and heat and terrain-related weather anomalies concentrate pollution.
In 2018, the metro Denver area recorded 131 days of “degraded air quality, meaning half or more of its monitoring stations reported elevated levels of PM 2.5 and/or elevated ozone,” Colorado Politics reported.
The violations by APCD management, led since 2017 by director Garry Kaufman, are also “contributing directly to chronic health problems, premature deaths, and severe injury to the environment by permitting ever more dangerous emissions,” the whistleblowers claim. Kaufman was deputy director of APCD from 2011 to 2014, left for a private law practice, and returned as director in 2017, according to his LinkedIn page.
“Despite attempts by environmental and conservation groups in Colorado to alert CDPHE leadership and management of the gravity of the situation, the agency has only buried its head deeper in the sand to avoid evidence that they are issuing unlawful permits,” the employees’ letter to the inspector general says.
The employees are represented by a Maryland-based legal nonprofit that has worked on multiple environmental and regulatory whistleblower cases in the past, Public Employees for Environmental Responsibility.
The Sun sent state officials at the APCD and CDPHE questions Monday about the allegations in the complaint and requested an interview with Kaufman or other managers. In an email statement, a spokesman said, “We are not at liberty to comment on this matter, which must go through a normal process as defined by state law and rule. The APCD is committed to complying with all state and federal laws.”
An ongoing disagreement within the health department, clear in years of internal emails apparently saved by the three named whistleblowing employees, is over EPA regulations related to hourly releases of toxic gas emissions vs. annual totals predicted by the industry applicants.
The U.S. Clean Air Act requires each state to have a State Implementation Plan to control six “criteria pollutants” considered especially dangerous when inhaled, ranging from carbon monoxide and lead, to nitrogen dioxide, sulfur dioxide, ozone and particulates. Particulates can form from combinations of substances, and are measured in microns at standards of 2.5 or 10.
When an industrial user applies for an air quality permit, the EPA requires states to model or monitor the proposed emissions of each substance in either short-term averages or annual averages. Permitting staff and their supervisors are meant to draw on the expertise of the modelers when they decide to approve, alter or deny an application to emit pollution.
A meeting earlier this month was the last straw
The complaint is signed by the APCD’s two current modelers, DeVondria Reynolds and Bradley Rink, and a third, Rosendo Majano, who was transferred a few months ago to a different CDPHE unit.
The whistleblowers say that years of disputes with their supervisors over whether Colorado was following permitting laws came to a climax with a mid-March meeting among the supervisors.
After the meeting, the claim continues, the whistleblowing employees were told to ignore most of the short-term thresholds from the state’s internal guidelines, and that Kaufman asked for the guidelines to be removed from the state web site. It was removed, the claim states, and a link to the guidelines was disabled and tagged “Under Revision.” (The state site still appears this way.)
The employees asked their supervisors to confirm the demand to ignore short-term thresholds, and the supervisors did, the claim says. “The response by the modelers was unequivocal: this is a violation of the law,” the claim says, citing emails preserved for the whistleblowing claim.
The state employees who approve air pollution permits were tired of sending applications over to the modeling department and having them raise objections based on the thresholds for short-term emissions, said Kevin Bell, staff counsel for PEER and the lead attorney on the whistleblowing claim.
So, Bell said, state managers were “basically telling the entire department to bury their head in the sand and ignore pollution, even when it’s an illegal or unsafe amount.”
“And,” Bell said, “not even measure how much it is, because if there’s a paper trail, showing the state knows how much pollution there is from something and they literally get sued on it, then it does not typically go well for them in court. So they want to suppress that as much as possible.”
The PEER attorneys say they will represent the whistleblowing employees in case of any retaliation on their employment status by the state or the named supervisors. In emails attached as an appendix to the complaint, the modelers warn APCD management they are tired of being “bullied” and will go public with the alleged violations and seek protections under whistleblower rights laws.
While the Front Range has made some progress in combating some forms of air pollution, a combination of hotter weather, oil and gas fracking operations, industrial growth and additional vehicles on the road have worsened ground-level ozone, one of the essential “criteria” pollutants. The complaint notes that nitrogen dioxide (NO2) is a key element of producing health-harming ozone, and that the Denver-North Front Range zone is an official EPA “nonattainment” area. Measurements have deteriorated from “marginal” in 2012 to “serious” in 2020, and are headed for “severe” in 2022, which will trigger EPA and state actions to dictate emissions cuts.
The March policy change enables “unfettered growth of NO2 sources in the nonattainment area and elsewhere in the state, at precisely the time when CDPHE should be making efforts to achieve exactly the opposite,” the claim states.
The complaint also doubles down on ongoing tensions between industry, regulators, and environmental advocates, who want more real-time, independent monitoring of actual emissions rather than computer modeling or aggregated annual reporting.
The complaint focuses on Extraction Oil & Gas’s Johnson’s Corner Production Facility north of Denver, and offers a map showing 777 sources of NO2 pollution within a nearly 16-mile radius. Each may have been permitted by the state because their individual emissions fell below certain thresholds, the complaint says, but the state lacks monitoring resources for precise ambient air measurements and has no idea what the cumulative impact is on air quality.
The state duty to “determine the actual status of air quality,” the complaint concludes, “has been neglected for years.”
Environmental advocates and local legislators are pushing for increased real-time, state mandated monitoring of air pollution sources at multiple locations this year. A bill passed a House committee last week that imposes real-time monitoring, with data disclosed to the public, for four high-pollution industrial locations on the Front Range.
Joro Walker, general counsel for the environmental group Western Resources Advocates, said she could not comment on the specifics of the whistleblowers’ complaint but added that it raises questions that deserve answers.
“If Colorado thought modeling of short-term spikes was important, and then they stopped, the public should want to know why,” Walker said. “Why do you think things will be fine? And there doesn’t seem to be an explanation for that. That’s what I’d want to know as a citizen in one of these protected areas, how is this new situation going to protect my health?”