Colorado’s air quality enforcers ordered staff to relax measuring of pollution, state employees allege

Colorado health officials responsible for controlling air pollution in the state this month ordered staff to relax their measuring of pollutants, including potentially harmful sulfur dioxide, nitrogen dioxide and particulates, according to a whistleblower complaint filed Tuesday.

Officials in the Colorado Department of Public Health and Environment’s Air Pollution Control Division on March 15 ordered employees who conduct required modeling used to estimate emission levels to stop their work on these pollutants at scores of facilities that receive permits from the state, the complaint filed by the Maryland-based Public Employees for Environmental Responsibility on behalf of three air pollution division employees contends.

These pollutants are linked to the unhealthy levels of ground-level ozone air pollution for which Colorado has been deemed a serious violator of federal health standards.

Among the whistleblowers’ allegations: a state health department modeler was ordered to falsify data on a Teller County gold mine “to ensure that no modeled violation would be reported.”

State health department officials did not respond immediately to Denver Post requests for an explanation. An agency spokeswoman said they were “working on a statement.”

The whistleblower complaint, sent to the inspector general of the federal Environmental Protection Agency, seeks an EPA performance review and audit of the state air pollution control division. The state air pollution control division relies partly on EPA funding, and penalties could include loss of funding and of the federally-designated authority for Colorado to issue permits that specify the levels of pollution that companies can emit into the atmosphere.

Letters from PEER attorneys to state health department director Jill Hunsaker Ryan, Gov. Jared Polis and four state lawmakers pointed out that disclosures made by state air pollution modeling employees are governed by the Colorado Whistleblower Protection Act, which forbids retaliation against employees for reporting legal violations. The attorneys asked to meet with Hunsaker Ryan.

State air division supervisors apparently removed a guidance document for air quality permits from a state website in March and did not issue a public notice of the policy shift.

Victims in Colorado include “everybody who breathes the air,” attorney Kevin Bell said for PEER, a national legal organization dedicated to protecting environmental whistleblowers.

“This is a breakdown in the way the government of the state is supposed to function. It makes people more likely to have health issues down the road. It also exacerbates COVID-19. And it is really remarkable that every non-supervisory state employee who worked in this unit of the air division is speaking with one voice on this issue,” Bell said.

The 14-page complaint — signed by CDPHE employees Rosendo Majano, DeVondria Reynolds and Bradley Rink — to the EPA inspector general said consequences of the health department’s adjusted permitting policy and a “culture of permitting at all costs” can be seen in the handling of specific permits.

The employees pointed to an asphalt and concrete plant, called the Martin Marietta Highway 34 Facility, located north of Denver within the area where air quality long has flunked federal health standards for ozone air pollution.

This facility “was exempted from demonstrating compliance” with pollution limits, the employees said. And an oil and gas industry facility about three miles away, called the Extraction Oil and Gas Johnson’s Corner Production Facility, which began operating in 2018, ran for a while without a permit and was exempted from compliance with federal standards, the employees said.

“It is likely that the Johnson’s Corner facility is amplifying and making worse an already existing violation with negative implications for air quality and public health. These are only two small facilities located in an area saturated with hundreds of other facilities, all inside the ozone non-attainment area, and jointly emitting thousands of tons per year of one of the main ozone precursors, NO2,” they said.

“Had these sources been permitted in compliance with regulatory requirements, the corresponding facilities would have been required to implement control measures, use better technology, or downsize their projects,” the employees said.

“This in turn would have the final effect of reducing the NO2 emissions to comply with the 1-hr NO2 NAAQS (national ambient air quality standard) and in turn reducing the formation of ozone. It is also possible that the area is so saturated that no more NO2 sources would have been permitted at all, which would have at least slowed down the continuing deterioration of the ozone problem,” the complaint said.

“Determining the actual status of the air quality in that area is part of CDPHE’s job, but that duty has been neglected for years, leading to the current crisis and the downgrading of Colorado’s NAAQS non-attainment status to ‘serious’ from ‘moderate’,” it said.

Colorado’s increasingly urbanized Front Range area that includes nine counties around Denver for years has flunked the federal air quality health standards set by the EPA. Last year,  Polis acknowledged public health concerns as federal officials reclassified Colorado as being a “serious” violator, requiring stricter enforcement of pollution limits.

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