The backlog of Colorado air pollution permit applications has doubled since the first of two recent EPA ozone downgrades that expanded the number of ozone-contributing polluters who meet the threshold for regulation, state officials said.
The backlog could grow by hundreds more when the EPA finalizes another downgrade of the state’s ozone failure to the even more “severe” level, though companies have a year after they are reclassified to seek permits for the new threshold.
The growing backlog is one reason environmental groups continue to win state district court orders directing Colorado regulators to finish permits faster and bring pollution sources under greater control. A state district court judge in mid-September ordered Colorado health department officials to finish an overdue permit for a large oil and gas wastewater site in Garfield County, and the state finalized it Oct. 1.
WildEarth Guardians filed another state district court lawsuit in late September to force Air Pollution Control Division action on an oil and gas facility in Arapahoe County. The overdue permit fits a pattern where the state allows new oil and gas and other pollution sources to begin work under construction permits, then falls years behind in finishing the more rigorous limitations of a Title V Clean Air Act operating permit, the environmental group says.
“It just seems outrageous that in the midst of this backlog crisis, which has left many of the state’s largest polluters unscrutinized, and in the midst of such major air quality challenges, that they would continue to give the green light to more emissions until they’ve gotten things under control,” said Jeremy Nichols of WildEarth Guardians.
The state has the authority to call a “timeout” on new construction permits that would worsen air quality, Nichols said. A coalition of environmental groups and local governments has asked the Air Quality Control Commission to pause oil and gas operations in Colorado’s hot summers as one fix for the ozone problem that led the EPA to downgrade the northern Front Range counties to “severe” violation levels.
State officials say construction permits are enforceable while operating permit applications are under review. They add that they are using a large budget increase from the 2022 legislature to add regulators who will help reduce the backlog of TItle V operating permits in coming years.
“We are significantly improving our ability to tackle the backlog that has accrued largely because of being short-staffed,” Air Pollution Control Division spokeswoman Leah Schleifer said. The fiscal 2023 budget that began July 1 authorizes 27 new hires for Title V permitting over two years, she said.
There were 54 overdue Title V operating permits in September 2020, Schleifer said. By Sept. 1, she said, that number had grown to 107 overdue permits, after the EPA’s reclassification from “moderate” to “serious” ozone violations in late 2019. That reclassification lowered the threshold at which companies needed to seek an operating permit, to emissions of 50 tons a year of certain regulated pollutants from 100 tons a year.
But the workload will grow even as the staff increases.
This year, the EPA announced it will further downgrade the northern Front Range’s ozone problem to “severe,” from the current “serious” category. That move will further lower the threshold for stationary pollution sources needing a permit to anything over 25 tons a year.
In earlier interviews, state air pollution control officials said the latest EPA move means state permits will be required for 473 more sources of pollution that contribute to ozone. That will nearly triple the “major source” locations that need to be permitted, to a total of 730, state officials said earlier this year.
The WildEarth Guardians lawsuit in Arapahoe County says True Oil received construction permits to start operating an eight-well oil and gas pad and hydrocarbon separation unit east of Aurora in 2018. The site could emit up to 85 tons of volatile organic compounds in a year, above both the thresholds for the 50 tons per year “serious” ozone violation areas and 25 tons per year for “severe” ozone violation areas.
True Oil applied for ongoing operating permits with the Air Pollution Control Division in December 2020, giving the state the statutory 18 months to review and decide by June 2022, the lawsuit said. The state has not acted on the permit.
State officials said they could not comment on litigation like the WildEarth Guardians lawsuit.
By failing to act on the permit and properly regulate pollution from True Oil, the state exposes WildEarth Guardians members in Arapahoe County to harm and avoids public hearings required in the permit process, the lawsuit says.
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“Defendants must take timely action on this operating permit application to ensure adequate protection of air quality and public health in Colorado and to provide for public participation in and scrutiny of the regulation of air pollution from Highlands Pad,” the lawsuit said. Once a draft permit is issued, advocates can object at public hearings and also through the EPA permit review process.
True Oil, which is not a defendant in the lawsuit, said it did not want to comment.
Environmental groups have seen success in recent years suing over both late permits and late renewals of existing permits. A 17th Judicial District judge said in January that the state had taken far too long in renewing permits for the Suncor oil refinery in Commerce City, and that the state needed to act “without delay.” One of Suncor’s major permits expired in 2012, and the other in 2018. State regulators finally issued the permit for Suncor’s Plant 2 this year, while the expired permit covering plants 1 and 3 is still under review. WildEarth Guardians has also brought similar action against the overdue state permit for the West Elk coal mine on the Western Slope.