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Independent investigation finds CDPHE’s Air Pollution division did not falsify, suppress information

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Posted at 1:50 PM, Sep 24, 2021
and last updated 2021-09-24 15:55:08-04

DENVER – An independent investigation into allegations that the Colorado Department of Public Health and Environment (CDPHE) illegally issued air quality permits and falsified modeling data found the claims were not substantiated, though it found more needs to be done to address when to model minor sources of pollution.

The report by Troutman Pepper Hamilton Sanders LLP found the allegations of falsified data and the alleged suppression of information brought on by three whistleblowers who alleged in a 15-page complaint that health department division leaders ignored U.S. Environmental Protection Agency (EPA) regulations on permitting short-term pollutants from important Colorado industries — including mines, asphalt plants and oil and gas gathering sites – were not substantiated.

But it also found that due to the “discretionary nature” of statutory provisions and a lack of EPA guidance on the issues, requirements for modeling minor sources of pollution are sometimes unclear, leading to confusing policies within the CDPHE.

The report primarily focuses on allegations regarding the modeling analysis conducted for a specific permit application for the Cripple Creek & Victor Gold Mine (CC&V).

“CDPHE’s decision to rely solely on EPA’s permitting threshold for existing major sources in determining whether to model minor sources left CDPHE without a well-supported policy for ensuring minor source permits would not exceed a NAAQS (National Ambient Air Quality Standards),” the report states. “However, that decision was not motivated by an intent to circumvent the law, but rather to resolve the conflict in CDPHE’s policies. “

The report also found that Air Pollution Control Division (APCD) Director Garrison Kaufman had a potential conflict of interest with respect to the CC&V mine, which he did not report for two and a half years in violation of CDPHE policy, but the conflict was resolved prior to issuance of the final permit.

It also states the issues raised by the complaint “arise in the context of a highly technical and complex facet of air permitting for stationary sources of air pollutants” and even though modeling requirements for higher emitting facilities are outlined in both EPA and CDPHE regulations, “modeling requirements for lower emitting 'minor sources' are less well-defined,” according to the report, leaving states to craft their own guidance on the issue.

The investigation also found that the CDPHE issued permits with “unaddressed modeled NAAQS exceedances” though it argued that modeled exceedances do not necessarily indicate that a minor source of pollution has violated or will violate NAAQS.

Lastly, it also found that the CDPHE admitted that modeling analysis for CC&V contained errors, but that the CDPHE used an ambient monitoring strategy to demonstrate compliance with the NAAQS following issuance of a permit.

“The letter to EPA OIG raises some valid concerns, but some are overstated. Although the letter claims all minor sources must “verify through air quality modeling” that emissions from the source will not “cause or contribute” to an exceedance of the NAAQS, that requirement only applies to major sources, and the requirements for minor sources are different,” the report states.

“That said, APCD the letter is correct that APCD may not ignore the air quality impacts of a minor source simply because it does not have the potential to emit more than 40 tpy (tons per year), particularly given that its own modeling group has determined that emissions of 40 tpy are likely to exceed the 1-hour NAAQS.”

The report states the APCD must implement legally enforceable procedures to ensure minor sources of pollution will not exceed the NAAQS, but those procedures "need not require" air quality modeling for every permit issued.

“Other tools may also suffice, including qualitative evaluations, hypothetical modeling, and ambient air monitoring. Accordingly, the letter to EPA OIG is incorrect in alleging that APCD must conduct air quality modeling for all minor source permits,” the report states. “APCD’s policy, however, was inadequate to ensure minor sources would not exceed the NAAQS.”

“Even so,” the report found, “APCD’s inadequate policy regarding minor sources (of polllution) did not necessarily result in actual NAAQS exceedances.”

To read the full report’s findings, click here.

“Improving air quality, combating climate change, and protecting Colorado’s environment is a top priority for the department. I asked for the investigation because we needed to address the allegations comprehensively and transparently,” said Jill Hunsaker Ryan, executive director, CDPHE, in a prepared statement. “I also wanted to understand where we could improve, and based on the findings, I am looking forward to building a national model around minor source air modeling and permitting.”

In an effort to be even more protective of air quality, CDPHE officials said Friday, the department plans to review best practices among any model states, and utilize an outside panel of scientific experts to help revise Colorado’s standards for minor source modeling and permitting.

“Now that we have the investigation completed, I expect the division to move forward with a continued sense of urgency. I’m proud of the division's robust achievements over the past few years, but we know we must do more to achieve improved air quality for Coloradans, and to aggressively reduce greenhouse gases. We have to be unified in our focus on those goals,” said CDPHE director of environmental health and protection Shaun McGrath.