Another Colorado judge has admonished state health officials for repeatedly delaying decisions on air pollution permits for oil and gas operators, even as the backlog of overdue permits continues to grow.
The latest court order against the state came as the Front Range recorded its first ozone violation of the year, in the second week of April, an historically early arrival of the lung-choking chemical stew that has put Colorado in the EPA’s “severe” category of air quality transgressions.
Calls for speedier regulation were also echoed in the new American Lung Association report on American cities with the worst air pollution, with Denver and Aurora ranking sixth-worst for ozone hazards and 18th for short-term particulate pollution.
A Weld County judge in late March issued summary judgment against the Colorado Department of Health and Environment’s Air Pollution Control Division for unacceptable delays in operating permit decisions for a Bonanza Creek Energy project in the county. District Court Judge Shannon Lyons nearly awarded plaintiff WildEarth Guardians their attorneys’ fees in the case, a rare move in Colorado environmental actions.
The judge concluded it was troubling “that this case appears to represent a larger trend of defendants routinely exceeding the statutory deadline for approving or disapproving applications for renewable operating permits. … By the time these draft permits are available to the public on April 15, 2023, over 28 months will have passed since their submission on Nov. 19, 2020.” The EPA-administered Clean Air Act requires permit decisions within 18 months.
The permitting process “is barely underway and yet defendants suggest a partial remedy to the court that would allow for interminable delays and no indication of when they intend to finalize these permits by granting or denying them.”
Lyons said the court was “remarkably close to concluding” that the state’s defense was unreasonable and unjustified in requesting “indefinite delay,” but gave the state regulators points for “candor in acknowledging their lack of compliance with the statutory deadline.” In the end, no attorneys’ fees were awarded to the environmental group.
WildEarth Guardians and other plaintiffs have won a series of judgments against the state for overdue permit decisions. They argue that Colorado regulators are overwhelmed and understaffed while new oil and gas projects contribute emissions of nitrogen oxide and volatile organic compounds that worsen regional ozone violations.
The judge’s admonition points to the state’s “ongoing failure to ensure polluters are held accountable to operating in compliance with clean air laws,” said Jeremy Nichols, who directs WildEarth Guardians’ climate and energy program. “These Title V operating permits are critical for ensuring companies like Bonanza operate in compliance, and the state’s delay in taking action is only serving to give cover to polluters.”
Colorado regulators and lawmakers say they are moving on the ozone problem on multiple fronts. The Air Quality Control Commission, for example, will debate Thursday a vote to force dealers in mid-size and heavy-duty trucks to begin selling a gradually increasing percentage of electric-powered vehicles starting in 2027. Reducing diesel emissions would help cut nitrogen oxide emissions that contribute to the Front Range ozone problem.
Still, the coming official ozone season could bolster demands by environmental groups and local officials to move faster. Monitors at Evergreen and Chatfield registered ozone at or over the 70 parts per billion EPA limit for eight-hour spans April 11, earlier than the usual dates in state records. The official ozone-tracking season for Front Range regulators begins May 31 and lasts through the summer.
While companies like Bonanza can continue activity on a state construction pollution permit as they await an operational or Title V permit, the state backlog means missed chances to review expected pollution and assess the overall impact of all Colorado permits put together, environmental groups say.
State regulators “still seem very much focused on doing everything they can to accommodate polluters. While we’re gaining ground in court, the problem frustratingly persists,” Nichols said.
An Air Pollution Control Division spokesperson said, “the division will not comment on the Bonanza Energy case, other than to say we are working to comply with the court’s order” to finish a draft permit and send it out for public comments.
The backlog of overdue initial and renewed operating permit applications grew to 115 by April 11, the division said. That compares with a backlog of 107 overdue permits on Sept. 1. Division officials have warned the backlog could continue to grow in coming months, as the EPA’s recent downgrades of Front Range ozone violations mean more pollution sources need to seek permits.
That backlog should eventually start to come down, they add, as the division continues to hire dozens of technical analysts with a budget greatly expanded by the Polis administration and legislators in 2022.
Clean air advocates would also like to see tougher enforcement of oil and gas companies’ actions through the permitting process. Colorado’s Renegade Oil and Gas has operated without construction permits for various projects since 2019, according to state records. Yet the state has now put out proposed permits for public comments allowing Renegade to keep going, Nichols said.
“We reviewed the records for over 10 of Renegade’s facilities following a public comment,” the APCD said, in response to questions about enforcement. “The division found that these facilities were not compliant because they did not have necessary construction permits. We established that if Renegade obtains a construction permit, it would rectify their non-compliance. We are currently finalizing inspection reports to determine if enforcement actions are needed.”
In 2022, the state shut down a Prospect Energy site north of Fort Collins for failing to stop leaks and a “pattern” of failing to respond to enforcement demands, Nichols noted. The tougher action immediately halted harmful pollution, and Colorado could have done the same with Renegade, he said.
That kind of enforcement would serve as a warning and immediately cut pollution by other operators on their existing permits, Nichols said. The air pollution division “is directly allowing more pollution to happen by not holding a line on preventing illegal emissions and tacitly allowing more pollution to happen by incentivizing noncompliance.”
“They should have shut Renegade down,” he said.
Neither Renegade officials nor Bonanza Creek officials responded to requests for comments on the permitting questions. This story will be updated if they do.