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Former mining company attorney regularly granted a past client exemptions as Colorado’s head of air pollution control, records show

Whistleblowers point to Director Garry Kaufman’s approval of exemptions for Newmont’s Cripple Creek & Victor Mine as clear conflicts of interest that prioritize the industry over public health

The view April 13, 2021 of an area outside Victor, Colorado, mined by the Cripple Creek and Victor Gold Mining Company. The area can be viewed from the "Grassy Valley Mining Overlook." Mark Reis, Special to the Colorado Sun
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The director of the state’s Air Pollution Control Division repeatedly signed off on exemptions to pollution limits for the world’s largest gold miner, Newmont Corp. — a company that he previously represented as an attorney in private practice, according to state records.

Air Pollution Control Division Director Garry Kaufman approved the exemptions for Newmont’s Cripple Creek & Victor Mine in multiple “enforcement discretion” letters since becoming chief of the agency in 2017, immediately after he had represented the mine in front of the agency while he was an attorney at Holland & Hart, the records show. 

Whistleblowers from within the division and environmental advocates say the conflict of interest is clear, and is the starkest example of the way the air pollution division and the Department of Public Health and Environment consistently prioritize industry desires over public safety, including allegations that higher-ups directed subordinates to disregard federal regulations and to doctor their reports. In recent years, northern Front Range industries and autos have pumped out so much ozone-creating pollution that the EPA will place Colorado in an even more severe “nonattainment” category for the health-damaging chemical in 2022. 

Three employee whistleblowers, Rosendo Majano, DeVondria Reynolds and Bradley Rink, have filed a complaint with the EPA’s Office of Inspector General over alleged violations of clean air permitting laws and alterations of modeling, asking for legal protection for their jobs at APCD.  

In interviews with The Colorado Sun, two other former employees supported those claims, and one said she worked on the Cripple Creek mine permit and considers Kaufman’s role a clear conflict of interest. 

When Division employees objected to Kaufman being involved in decisions about the mine, they were told it was not a conflict because he was no longer receiving money from the company, said Marie Bernardo, an environmental engineer and former employee of the modeling unit. Bernardo said she is not one of the formal whistleblowers, but agrees with all of their complaints.

The whistleblowers “just want the decisions to be made on science,” said Bernardo, who is now a teacher in a Colorado mountain county. “I think that’s what’s getting lost.”

In multiple communications with APCD and CDPHE, attorneys for the whistleblowers point to the alleged conflict of interest as proof that state officials see their jobs “not as enforcement or compliance monitoring, but customer service with a smile for the mining sector.” 

“Through his actions, director Kaufman prioritized the interests of his former client, Newmont Corp., over the health and welfare of the residents of the two towns adjacent to the CC&V mine property, disregarding the duties entrusted in him as a high ranking state employee,” and in violation of the state constitution, which “mandates public employees to carry their duties for the benefit of the people of the state,” Chandra Rosenthal, a Colorado attorney representing the whistleblowers for the nonprofit Public Employees for Environmental Responsibility, or PEER, said in an email to The Colorado Sun.  

“His failure to recuse himself from regulatory decisions made in favor of his former client could be perceived as an ethical lapse and a violation of public trust,” Rosenthal said. 

Colorado Attorney General Phil Weiser signaled Monday that he was launching an independent state investigation of the whistleblowers’ previous claims, by posting a request for proposals from outside attorneys on the Colorado Department of Law website. CDPHE said in a statement it would cooperate. The request did not mention questions about the conflict of interest.

In previous communication with an environmental group that claimed Kaufman had a conflict of interest and should have recused himself from any decisions on the mine, the Air Pollution Control Division denied there was a conflict and said Kaufman’s previous work for  Newmont gave him a “unique perspective” on the permit process. 

In email responses to questions Tuesday, Kaufman said there was no conflict of interest. 

“I didn’t have any ongoing financial relationship with Newmont Corp. or Holland & Hart and would not in any way benefit personally from any decisions related to the Cripple Creek & Victor Mine,” Kaufman wrote in the email. “Air Pollution Control Division managers, supervisors and employees working on the permit application did know of my past legal work with the company when I rejoined the division.” Kaufman had previously been a deputy at APCD before leaving and joining Holland & Hart.

Asked if he discussed his relationship with Cripple Creek & Victor again when he was supervising permits for the mine as APCD director, Kaufman said, “I had a conversation with the director of environmental programs in 2019 about it in response to a public comment raising the concern. When a public comment raised concerns about my past relationship with Newmont Corp, I referred the matter to the director of environmental programs, and I did not participate in the final determination to issue the permit.”

A spokesperson for Newmont Corp. said of the conflict of interest allegations, “Newmont takes items related to governance, transparency and conflicts of interest very seriously. The inquiry as to a conflict of interest on the part of Mr. Kaufman goes to the governance process and requirements of APCD and CDPHE.”

Teens cross Bennett Avenue at the west end of Cripple Creek on, April 13. State health officials say they have placed extra air pollution monitors in nearby Victor, closer to the gold mine, to assure compliance with emissions laws. (Mark Reis, Special to the Colorado Sun)

As for current operations at Cripple Creek & Victor, the Newmont statement said: “Our mining operations at CC&V are in compliance with applicable laws, regulations and standards and we regularly monitor and report on our performance as required by our permits. CC&V has, and will continue to, work extensively with CDPHE on air quality monitoring and permitting to demonstrate compliance with National Ambient Air Quality Standards.”

The mine monitors particulate pollution and reports it to the APCD, and adjusts or suspends its operations in real time to stay within pollution limits, Newmont’s statement said. The company is also working with APCD on a voluntary nitrogen oxide monitoring program to verify projections made in modeling, the statement said.

The allegations of state air quality officials being too close to the industry they regulate come as community and environmental activists join with some state legislators to demand tighter pollution regulation. They want hard deadlines for the state to write rules forcing utilities and companies to meet goals set in Gov. Jared Polis’ Greenhouse Gas Emissions Road Map. The governor’s office opposes the setting of any hard deadlines, saying the market and individual decisions should contribute more of the solutions. 

Activists are also targeting an early May re-permitting process for the Suncor refinery in Commerce City, saying it’s time for state regulators to finally crack down on both toxic ground-level emissions and greenhouse gas emissions. 

Environmental groups and allied attorneys are now challenging air pollution permits for other companies based on the APCD whistleblowers’ complaints, arguing the permits were approved in a legally corrupted system. WildEarth Guardians on April 19 sent a formal challenge to CDPHE questioning approval of a Bonanza Creek Operating Company drilling and gathering site in Weld County, east of Greeley.

The whistleblowers’ case has revealed a culture problem among state regulators that undermines the stated policies of Polis and legislative leaders to attack air pollution and climate change, said WildEarth Guardians’ climate and energy policy director Jeremy Nichols, in filing the protest. 

“We are building a record around their refusal to analyze air quality impacts and their track record of covering up modeling,” Nichols said. 

“The state’s response time and time again is, ‘We’re not required to do more, this is good enough,’” Nichols said. “They never stop to think about, what more could they do to help? To help the community feel safer, feel listened to, those questions just don’t seem to affect the division or enter into their mind.”

Allegations that Kaufman and some of his subordinates at the APCD take actions favoring industry over public health are at the heart of the whistleblowers’ complaint that went public in March. Three current employees, who made up the entire modeling section in recent years, sent the EPA emails, memos and other material allegedly showing superiors ordering them to ignore federal limits on short-term pollution. Two are still in the modeling unit and the other has transferred elsewhere inside CDPHE. They also claim their supervisors demand that data be altered and declined to correct errors in order to keep facilities under pollution thresholds.

“It is my understanding that you are instructing me to turn a blind eye to the work that we are supposed to do in order to protect and improve the health of Colorado’s citizens and the quality of its environment,” DeVondria Reynolds, a modeling employee and one of the whistleblowers, wrote in a March 16, 2021, email to Kaufman. “I refuse to sign my name on any further modeling reports under your mandate without a written documented memo (or likewise) that has your signature of approval that is dictating this direct violation of law and regulations.” 

Kaufman was deputy director of Air Pollution Control Division until 2014, when he left for private practice at Holland & Hart, according to his LinkedIn page. While at Holland & Hart, the LinkedIn page says, Kaufman was an “environmental attorney with a focus on Clean Air Act matters. Advise(d) a variety of clients in the energy and mining industries regarding air quality permitting and regulatory requirements, policy and rule development, administrative enforcement actions, civil litigation and appeals at both the state and federal level.”

One of Kaufman’s clients was Denver-based Newmont Mining, owner of the Cripple Creek & Victor gold mine in Teller County, itself one of the largest producing gold mines in the Western Hemisphere. 

Cripple Creek & Victor needs air pollution permits from the state for various emissions, and periodically asks to alter existing permits, when new equipment or processes are added. The mine’s work creates air pollution by blasting rock, crushing materials and earth moving, then extracting gold in a “heap leach” method that involves dripping forms of cyanide and other chemicals over the stones. 

Kaufman represented Newmont in permit reviews scheduled with various members of the APCD that he’d left behind, according to department emails from 2015. In one October 2015 email to Newmont officials and state staff regarding the modeling and data for the gold mine permits, Kaufman shared an agenda he prepared for a subsequent conference call.

In 2018 and 2019, when Kaufman was back as APCD director, modeling unit employee Rosendo Majano began raising questions about Cripple Creek & Victor permit modifications. Majano said modeling showed the changes and new equipment would violate the EPA’s one-hour limits on certain emissions. In a 33-page “Addendum to the Final Modeling Review Report” for one of Cripple Creek & Victor’s mine-life extension requests, Majano objected to multiple decisions made by Kaufman and to the fact that Majano’s immediate supervisors were overriding Majano’s concerns. 

In a June 2018 email attached to the report as an appendix, Majano wrote to his supervisors, “In short, the Cripple Creek & Victor facility will cause modeled violations of the 1-hr NO2 NAAQS. In addition, there are several errors in the modeling analysis that require correction before it can be determined whether the proposed project will or will not cause and/or contribute to modeled violations of the rest of the applicable NAAQS.” 

NAAQS are National Ambient Air Quality Standards set by the EPA as part of the Clean Air Act. They set limits for emission of six “criteria” pollutants proven to harm human health, including NO2 or nitrogen dioxide. The NAAQS set various limits for each pollutant, including separate caps on emissions detected in one-hour, three-hour and other time periods, and over the course of an entire year. 

In his email responses on state oversight of Newmont and the mine, Kaufman said, “The division acted to protect the public health and environment in Teller County when we considered the permit application. Public health is the top priority when evaluating a permit application, and we act in a way that is consistent with relevant laws and regulations. In this case, Newmont submitted modeling showing compliance with the National Ambient Air Quality Standards.  As noted above, after careful evaluation, the department ultimately concluded that the modeling submitted by Newmont used scientifically reasonable calculations and emissions projections in evaluating the source.” 

A Teller County Health Department spokesperson said the county has not received public complaints about air quality related to the mine in recent years, but if they did, they would pass them along to state officials who have jurisdiction. 

The view on April 13 of an area outside Victor mined by the Cripple Creek & Victor Gold Mining Company. The area can be viewed from the Grassy Valley Mining Overlook. (Mark Reis, Special to The Colorado Sun)

Much of the tension within the state health department and its air pollution division in the past decade, described in interviews, internal documents and complaints by the whistleblowers, focuses on one-hour limits for some of the pollutants.

Division officials issued a memo in 2010 that the whistleblowers claim told modelers and permitters to ignore one-hour standards for some pollutants and focus on annual allowances instead. That 2010 memo set up years of back-and-forth disputes with the modeling team about permits that were modeled to show short-period violations, with those concerns repeatedly dismissed by APCD leadership. 

The whistleblowers and other former employees argue those orders violate EPA rules, and harm the health of Coloradans by accumulating over time. While one company’s facilities might not put out an alarming total of pollutants over a year, short-term spikes measured by the one-hour limits contribute to Front Range ozone violations on hot summer days, among other problems, they argue. When hundreds of relatively small pollution emitters are allowed to continue in a small area, such as the concentration of industries and oil drilling and gathering sites between Fort Collins and Denver, the impact of each permit must be weighed carefully by the state, they say. 

The modeling report and the emails discuss in detail requests by the gold mine for more rock blasting and for expanded use of “non-road diesel engines,” among other changes. After reading Majano’s objections passed along by his supervisors, Kaufman wrote a detailed email in July 2018 concluding, “given these determinations from permitting, I believe all the in-stack ratios that CC&V used are acceptable and therefore the potential issues raised in the draft modeling report are resolved.”

The March whistleblower complaint to the EPA highlights the mine dispute as an example of Kaufman and state officials ignoring the law and ordering the use of incorrect data to keep modeled pollution under the limits. They said their list of examples was only a small part of the permits they believe are compromised by their supervisors’ actions.

“A CDPHE modeler was ordered to falsify data in a modeling report regarding this facility to ensure that no modeled violation would be reported,” according to the whistleblower complaint, prepared by attorneys from the nonprofit PEER.

Majano wrote in January 2019 internal department emails, “As you know, officially there aren’t any modeled violations at the CC&V Mine. That’s because of the 01/14/19 and 01/28/19 emails from (supervisor) Gordon Pierce requesting to remove the concentrations exceeding the NAAQS from the report and to replace them with a value that was lower and that was based on incorrect data. Therefore, officially the highest modeled concentration is of 187.7 ug/m3 (99.77 ppb). The NAAQS is of 100 ppb. Reality however, is very different.”

After detailing why he did not think the modelers’ objections should delay permitting for the gold mine, Kaufman signed more in a series of “enforcement discretion” letters to the mine’s general manager allowing them to move forward. 

“Given CC&V’s efforts to work closely with the division to develop acceptable modeling methodologies, and CC&V’s agreement to follow division specified methods to demonstrate compliance with the NAAQS, the division is hereby providing CC&V with the requested enforcement discretion and extending the deadline set forth in Condition 7 of Permit No. 16 TE0011, Issuance 1 . . .,”  Kaufman’s Oct. 20, 2018, letter said.

In their full whistleblower complaint, Majano, Reynolds and Rink detail a long list of companies and permits where they believe the division overrode modeled violations of various pollutants and allowed projects to move forward. The alleged violating permits were issued to large asphalt plants, coal mines, oil and gas drilling and gathering facilities, and a meatpacking plant, according to the complaint. 

Taken together, the whistleblowers’ complaint said, the unlawful permits and the pro-industry influence by supervisors show “a pattern of unlawful conduct which is directly responsible for Colorado’s precipitous decline in air quality in the last decade.”

CDPHE executive director Jill Hunsaker Ryan told the whistleblowers’ attorneys in a letter this month that the department is examining the complaint about unlawful permits, and is reconsidering the 2010 memo that allegedly set APCD policy to ignore short-term pollution violations when considering permits.

Kaufman said that at his instruction, APCD staff put a nitrogen dioxide monitor in the town of Victor where modeling said pollution could threaten the limits. 

“The monitored values to date do not indicate that there will be a violation of the NAAQS. However, the division will continue this monitoring, and if it shows a problem, the division will have real data to support strong action to reduce emissions at the mine and protect the health of nearby residents,” Kaufman said. “The division continues to closely monitor the mine, and we will hold Newmont Corp. accountable for any future violations at the mine.”

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