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Whistleblowers raised valid concerns about Colorado air pollution monitoring, probe finds, but problems were unintentional

An independent investigation commissioned by the Attorney General also says boss of Air Pollution Control Division should have disclosed his prior work for Newmont Corp. when a pollution permit for a Teller County mine came before him.

The view April 13, 2021 of an area south of Cripple Creek, Colorado, mined by the Cripple Creek and Victor Gold Mining Company. Mark Reis, Special to the Colorado Sun
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Whistleblowers attacking the Colorado Air Pollution Control Division for conflicts of interest and improper modeling of potential pollution sources raised valid concerns in complaints to the EPA Inspector General, but the state’s violations were not intentional and officials did not falsify data, according to a new report by the state Attorney General’s Office.

The report by an independent attorney, ordered by the state Department of Public Health and Environment to investigate three internal whistleblowers’ complaints, details a conflict of interest by APCD Director Garry Kaufman involving himself in permits for a Teller County gold mine his former private law firm represented. 

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“Kaufman had a potential conflict of interest with respect to the (Cripple Creek & Victor) mine, which he did not report for two and a half years in violation of CDPHE policy, but the conflict was resolved prior to issuance of the final permit,” according to the report, by Troutman Pepper Hamilton Sanders. The law firm was hired by the attorney general. 

The whistleblower’s initial complaint to the EPA’s Office of Inspector General is still under investigation, according to the whistleblower attorneys at Public Employees for Environmental Responsibility, or PEER. 

The report “seems to be technically proficient but it is going out of its way to phrase and structure things such that it minimizes individual culpability, or the need for organizational reform that is obvious to anybody who goes outside and breathes the air,” PEER attorney Kevin Bell said. The 50-page report does point to the need for reform in air pollution policy for Colorado, Bell said. 

In a statement issued with the release of the investigation, state health officials said Friday the report indicates “that the claims that the Air Pollution Control Division committed fraud and suppressed information were not substantiated . . . The report does illustrate the need for more scientifically sound criteria and a better process for determining when to model minor (pollution) sources.” 

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Three APCD employees in their initial complaints said health department managers endangered the health of Coloradans by unlawfully approving noxious gas permits for industry without federally-mandated modeling or monitoring. 

The state employees claimed in a complaint to the 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 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. 

The report released Friday by the attorney general acknowledges multiple problems in how the division interprets and applies EPA policy in pollution modeling, but also adds that the cases cited by the whistleblowers do not appear to have resulted in actual measured pollution violations at the sites in question. 

“CDPHE’s decision to rely solely on EPA’s permitting threshold for existing major sources in determining whether to model minor sources left CDPHE without a well-supported policy for ensuring minor source permits would not exceed a (national ambient air quality standard). However, that decision was not motivated by an intent to circumvent the law, but rather to resolve the conflict in CDPHE’s policies,” the attorney general commissioned investigation said. 

Regarding other allegations by the whistleblowers, the report concludes, “APCD did not suppress information or falsify data.” 

“The bottom line is that CPDHE acted in a way that protected neither public health nor the environment and its Air Pollution Control Division is out of control,” Rocky Mountain PEER Director Chandra Rosenthal said in a written statement about the report. “Even if these managers acted improperly because they did not understand the legal requirements, they still should be replaced with people who understand the Clean Air Act in letter and spirit.” 

The last pages of the investigation detail Kaufman’s departure from the APCD to work for Holland & Hart and represent Cripple Creek & Victor in permitting issues, then his return to APCD as the director. As APCD director, he worked specifically on the gold mine’s permit again. The mine is owned by Newmont Corp., one of the largest gold miners in the world and one of Kaufman’s clients at Holland & Hart. 

His private legal work for the mine “created a potential conflict of interest that should have been disclosed by Kaufman on his annual Conflict of Interest Disclosure Form,” the report said. “While there is no information indicating that Kaufman would have benefited financially by the issuance of the CC&V air permit, his very recent employment as an attorney representing Newmont on the CC&V permit application creates the appearance that his work on the CC&V permit application for CDPHE could have been influenced by that prior relationship,” the special investigator said. 

“This potential conflict of interest was exacerbated by the level of involvement that Kaufman had in the permitting process, during which he relied on his prior knowledge of the facility gained during his representation of the facility as counsel to its owner,” it concluded. 

Kaufman was removed by his supervisor from any oversight of the gold mine permit after PEER’s attorneys first raised the question in a 2019 complaint. He has said he did not retain any financial interest in Holland & Hart after he returned to a state job, and therefore would not have benefited in any way from Cripple Creek & Victor receiving permits.


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