The Environmental Protection Agency has backed off requirements that Colorado make polluters’ records easily available to the public and environmental watchdogs, saying the state deserves more time to object.
Previously, the EPA had rejected portions of Colorado’s State Implementation Plan for complying with Clean Air Act limits on ozone, which the northern Front Range counties have been violating for years. The EPA requires such plans from states if they want to avoid sanctions for failing the limits for toxic ozone.
The EPA published in the Federal Register on Wednesday a notice saying it was putting a hold on its partial disapproval of Colorado’s plan until June 1, to give the state health department more time to appeal. That means the “federal implementation plans and sanctions clocks” won’t restart until June 2.
Both the EPA and Colorado Attorney General Phil Weiser declined comment on the reprieve for the state. Weiser’s office is handling the state appeal of the EPA’s May decision on open records, in the U.S. 10th Circuit Court of Appeals. The EPA also has an agency process for reconsidering its decision after the state objected, which allows for public notice and comment on the issue.
The Center for Biological Diversity said tabling of the open records requirement is a big loss for the public.
The Clean Air Act allows for three primary groups to police pollution by companies, center attorney Robert Ukeiley said. The EPA can review pollution reports and issue sanctions for violations, and so can regulators in the Colorado Department of Public Health and Environment. Public watchdogs and citizens are the third option, Ukeiley said.
“The public can only do it if they have the information about how much the polluter is putting out, so they can compare it to how much pollution they’re allowed,” Ukeiley said. “Without that information we Coloradans and others can’t protect themselves and their families and their property from illegal levels of pollution.”
In May, the EPA had agreed with portions of environmental groups’ protest against the state’s air pollution improvement plan.
The EPA has “repeatedly” held that for state pollution-fighting plans to be practically enforceable, people “must have reasonable access to the records allowing enforcement,” according to the agency’s official response to public comments on the plan.
Weiser said in August that state health officials believe there is adequate public access to all permits and company reports, and that making access easier would divert state money and staff time from actually fighting pollution.
The current system requires the companies holding an air pollution permit to keep the records and make them available to the state “upon request,” according to the EPA’s decision published in the Federal Register. But states might not do that, the EPA said in its May ruling. “This undermines citizens’ ability to participate in the enforcement” of clean air rules, the agency said.
The EPA’s new demand that the state be the “aggregator or collector, just in case anyone wants it,” Weiser said in an interview with The Colorado Sun in August, “adds what is an unnecessary cost and burdensome step, that will divert valuable state resources to an area that’s just not worth it.”
Weiser also said the EPA has never required Colorado to do this in the past, and does not require all other states to do it.
“The lowest common denominator argument doesn’t carry much weight with me,” Ukeiley responded. “If it’s illegal, it’s illegal. It’s like if you’re getting a traffic ticket and your defense is that everybody else was speeding, the judge isn’t going to let you off.
“All that matters is the Clean Air Act requires this,” he said. “Colorado’s not doing it, and the EPA did their job and called Colorado out because their pollution plan was illegal.”
The Center for Biological Diversity will be submitting its arguments in favor of the open records requirement through the EPA’s review of the Colorado objection, Ukeiley said. If the EPA backs down from the requirement, the center will stay involved in the Court of Appeals proceedings on the state plan.