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The view of an area outside Victor, mined by the Cripple Creek and Victor Gold Mining Company. One of the mine's permits was included in an outside investigation of the Air Pollution Control Division's handling of applications. (Mark Reis, Special to The Colorado Sun)

Environmental groups say a state science and policy panel failed to fix problems tagged by whistleblowers that the state broke EPA rules in how it sets pollution caps for companies, and that now the state will continue to rubber stamp unlawful permits and harmful emissions.

The advisory panel had two industry votes to one environmental advocate vote, and rejected a recommendation to require modeling of expected pollution instead of more monitoring of pollution after the fact, the environmental groups said. 

“It was incredibly disappointing to sit through hours of meetings and watch the slow train wreck of what ended up happening,” said Chandra Rosenthal, Rocky Mountain counsel for the nonprofit whistleblower defense group Public Employees for Environmental Responsibility.

“For over a decade, they had issued thousands of permits without any evidence” that the resulting pollution would stay below EPA limits for substances like nitrogen oxide and particulate matter, said Robert Ukeiley, who represented the environmental community on the panel for the Center for Biological Diversity. EPA rules are clear that a state’s promise to monitor pollution later is not enough justification to issue a permit, even for relatively small amounts of air pollution, he said. 

“Monitoring a source after construction is a violation of the law as one can only monitor after a source is already constructed or modified,” Ukeiley argued in front of the panel, in a recommendation that was rejected. Besides, Ukeiley added, Colorado doesn’t have an adequate monitoring network in place for the so-called “minor source” permits.

Even one of the industrial representatives on the panel was mystified by the way the division released the panel’s recommendations for a public comment period. Attorney Chris Colclasure, representing industrial sources as part of the expert panel, said the division’s public release left out more detailed recommendations the panel agreed upon for the thresholds when modeling for nitrogen oxide would be required. 

“These are major omissions,” Colclasure wrote in an email. “The panel made these recommendations for NOx and the public deserves to see them.”

One the whole, though, industry representatives on the panel and state Air Pollution Control Division regulators said the panel rightly recognized that Colorado already has much tougher permitting requirements than most other states. They say a big boost to modeling of expected pollution is not necessary when monitors never log actual violations of EPA-regulated emissions of individual substances like nitrogen oxide. 

They say the panel’s vote for more post-permit monitoring of actual emissions will continue to improve regulation. 

“It’s not a situation where we have any documented exceedances in the state,” said Colclasure. “We need to have a healthy environment and a healthy economy. It’s nice in Colorado that we have both. We can have an approach to air permitting that protects the public and also allows companies to do business here.”

Colclasure was relatively happy with the 50-page draft report of the panel first circulated by the division, though he does not understand why the state then cut out key points before sharing it with the public. (State officials responded: “The full report is available to anyone who requests it.”)

The panel was one state reaction to complaints by air quality division internal whistleblowers in 2021 that Colorado was routinely flouting EPA rules in permitting industrial polluters that emitted relatively small amounts of regulated substances. The whistleblowers also complained division officials had overridden modeling to issue permits that would have allowed too much pollution. Other complaints said officials had conflicts of interest in helping approve permits for former clients when they worked in private practice. 

The Colorado Department of Public Health and Environment, which oversees the air quality division, asked the state Attorney General’s Office to investigate the complaints, and AG Phil Weiser hired a private special counsel

The counsel’s report said that while allegations of falsifying data to approve one permit weren’t supported, the investigators did call for reforming the state’s policy on whether to model “minor source” polluters before issuing a permit. They also agreed there was a conflict of interest in the department that went undisclosed. 

“Modeling of minor sources is discretionary, but the law requires state permitting authorities to have a justified and enforceable means of ensuring all sources will not violate EPA’s health-based national ambient air quality standards,” the investigators’ report said. 

The air quality division appointed the panel to make recommendations for change in modeling and monitoring permits. 

The panel’s draft report, Ukeiley said, accepted the proposals of the division staff for “this complicated subjective process that may require modeling after you go through a bunch of guesswork.” Representing the environmental community, Ukeiley wanted “just to require modeling, because that’s the only tool that isn’t guesswork.” 

Colclasure, one industry representative, countered that even under the new proposal, Colorado will be requiring permits for pollution sources emitting as little as 5 tons of regulated pollutants a year in some areas of the state. Other states set their permit thresholds at 25 tons or 40 tons, in similar cases, he said.

“We’re already more aggressive about regulating. So I don’t think Colorado needs to make itself so much more stringent,” he said. 

The permit process changes recommended by the panel don’t need approval by the Air Quality Control Commission. Instead, the air quality division has now posted the draft recommendations and is taking  feedback and holding public hearings, then will implement new rules later this year. 

Michael Booth is The Sun’s environment writer, and co-author of The Sun’s weekly climate and health newsletter The Temperature. He and John Ingold host the weekly Sun-Up podcast on The Temperature topics every Thursday. He is co-author with...