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EPA agrees with air pollution whistleblowers on inspector general complaints, asks Colorado to review 11 permits

Regional EPA office asks state officials to review permits that Air Pollution Control Division employees said shouldn’t have been approved.

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)
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The Environmental Protection Agency agreed Thursday with many claims by Colorado air pollution division employee whistleblowers that the state was issuing permits without proper modeling or review, and recommended revision of at least 11 permits in dispute. 

Three Air Pollution Control Division employees filed a complaint with the EPA’s Office of Inspector General last year saying their managers endangered the health of Coloradans by unlawfully approving noxious gas permits for companies without federally mandated modeling or monitoring. 

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They said their leaders ordered them in mid-March 2021 to stop performing modeling required by the Clean Air Act. The whistleblowers, who run the state 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 in the event the state was sued by environmental groups.

Leadership of the air pollution division has since changed hands, and the EPA’s report on the complaints Thursday acknowledged Colorado has already agreed to implement some of the recommendations in its modeling and permitting program. 

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“We have identified important concerns with the state’s implementation of the … minor source permitting program,” according to the report on the whistleblowers’ objections, which were handled by the Region 8 EPA office headed by KC Becker. 

The state’s failure to consider potential air quality violations modeled by the employees is inconsistent with state and EPA rules on limiting air pollution through permits, “and could result in harm to air quality and public health,” the report said. 

The EPA wants Colorado to review 11 permit records identified in the complaint and conduct new modeling and attach new permit conditions, the report said. That includes a disputed permit for the Cripple Creek and Victor Gold Mine, where whistleblowers said their managers allowed the mine to separate out individual pollution sources without aggregating their full impact. 

“In light of the high level of public interest on these issues, the EPA notes that any revisions to these permits, including the permit record, would benefit from public notice and comment,” even if state rules don’t require it, the report said. The EPA gave the state until October to respond to the recommendations. 

The whistleblowers last year said 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 claimed. 

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. 

The Air Pollution Control Division’s current director, Michael Ogletree, has since convened a science advisory panel and accepted some recommendations on how to revise the modeling and pollution monitoring process

In the case of the Cripple Creek mine, whistleblowers said then-air pollution director Garry Kaufman 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.

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 a large Denver firm, the records show. 

Whistleblowers from within the division and environmental advocates say the conflict of interest was 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.

Colorado Department of Public Health and Environment officials said Thursday they have taken the allegations seriously, but also noted that “today’s report did not determine if there were any actual exceedances of National Ambient Air Quality Standards or subsequent environmental harm.”

State officials asked for an independent investigation of the whistleblower claims last year, a spokeswoman for the Air Pollution Control Division said.

“We have been taking steps to address systemic issues within the division, including reorganization, modernization, seeking significant new investment, revamping procedures, improving processes, and acquiring leading edge technology in monitoring and permitting,” the statement said.

The protests against the state were brought by the Rocky Mountain office of the whistleblower protection nonprofit Public Employees for Environmental Responsibility, on behalf of three state employees who worked on pollution modeling for proposed permits. Their attorneys were pleased with the report. 

“It is gratifying to see the new EPA send a clear message of reform to the state,” said PEER’s Colorado director Chandra Rosenthal. “EPA agreed with the whistleblowers that the Clean Air Act requires pollution prevention while the CDPHE persists with its unsustainable strategy of merely monitoring pollution rather than preventing it.”

One of her clients formerly in the Air Pollution Control Division, Brad Rink, was less complimentary. 

“I don’t think the EPA went far enough,” Rink said, in an email forwarded by Rosenthal. The EPA agreed that Colorado had been making modeling decisions based on a guidance memo now officially withdrawn by the division. Far more permits were issued under that memo than those tagged in Thursday’s report. The EPA’s report “suggests that they may not understand the entire scope of the problem,” Rink wrote.  

Rosenthal gave credit to Becker, former speaker of the state House of Representatives, for being more aggressive on pollution. “There seems to be momentum building to clean Colorado’s skies,” Rosenthal said. 

This story was updated with new comments at 3:35 p.m. on July 14, 2022, and 6:00 a.m. on July 15, 2022.


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