By Conrad Swanson
The Denver Post
State health officials say they don’t have enough guidance from the Environmental Protection Agency to know when to estimate whether smaller polluters in Colorado exceed air quality limits on particulates, sulfur dioxide and nitrogen dioxide.
That lack of guidance led to the state’s Air Pollution Control Division issuing multiple air quality permits to facilities that predictive models showed could violate federal pollution standards, according to a report published Friday by the Colorado Attorney General’s office. Division managers “did not intend to violate the law,” the report said.
However, division manager Garry Kaufman did not disclose conflicts of interest that he had with a Teller County gold mine for two and a half years, the report stated. And while three whistleblower’s allegations in March of fraud and suppression were unsubstantiated, the report said, Kaufman’s order that sparked the allegations was based on “insufficiently justified” or “incorrectly applied” information.
The state started the investigation by national legal firm Troutman Pepper Hamilton Sanders LLP about three months after receiving the complaint from the whistleblowers, who work for the Colorado Department of Public Health and Environment. The three alleged Kaufman ordered managers to tell employees not to review or model estimated emissions at smaller facilities for the two gases or particulates less than 2.5 micrometers, which contribute to unhealthy levels of ground-level ozone.
The employees also alleged CDPHE was “suppressing information” and “approving air quality permits” that models showed would violate national air quality standards — the latter of which was substantiated.
With the help of Maryland- based organization Public Employees for Environmental Responsibility, the whistleblowers said in the complaint that Colorado fosters a culture of approving permits for industrial polluters “at all costs” and to the detriment of public health.
Gov. Jared Polis and CDPHE Director Jill Hunsaker Ryan asked Attorney General Phil Weiser in April to investigate the whistleblowers’ allegations and tapped the law firm in July to lead the probe.
“The report does illustrate the need for more scientifically sound criteria and better processes for when to model minor sources,” Hunsaker Ryan told The Post.
Hunsaker Ryan also said the report highlighted a lack of EPA guidance. EPA representatives did not respond to multiple requests for comment.
The report showed federal guidelines for smaller polluters are sometimes unclear, and that CDPHE held two conflicting policies for them. One policy that Kaufman backed was “based on an unsupported extension of EPA’s permitting threshold for existing major sources,” the report said. The other, supported by the whistleblowers, was “well-supported by technical analyses, but overly conservative.”
Neither position was “wholly right,” said Shaun McGrath, director of CDPHE’s environmental programs.
But Kaufman won out, causing the division to issue permits to facilities that models had shown would exceed federal pollution standards, leaving the potential violations “unaddressed.” Friday’s report noted that those permits weren’t issued out of an “intent to circumvent the law.”
In addition, the whistleblowers specifically alleged fraud and suppression with the Cripple Creek & Victor Gold Mine in Teller County, where they said predictive models showed violations for nitrogen dioxide and particulate emissions. That’s the site where Kaufman had a conflict of interest.
“A CDPHE modeler was ordered to falsify data in a modeling report regarding this facility to ensure that no modeled violation would be reported,” the whistleblower complaint said.
Friday’s report called those claims “unsubstantiated” but noted that the basis for the changed models was based on flawed information. That’s a thin distinction, PEER attorney Kevin Bell said.
“There’s a pretty hazy line between the incorrect application of facts and the falsifying of data or the fraudulent use of information,” Bell said. Before working for the state, Kaufman worked for a legal firm that represented the Newmont Corporation, which owns the Teller County gold mine, the report said. He lobbied state officials in 2014 to issue the mine an air quality permit, and in early 2017 joined CDPHE, where he was responsible for reviewing and “providing substantive comments” on the mine’s permit application.
Kaufman didn’t recuse himself from the permitting process until August 2019, before the final permit was issued.
McGrath spoke highly of Kaufman and said he will remain director of his division. Kaufman did not immediately respond to requests for comment on Friday.
Chandra Rosenthal, who is the Rocky Mountain Field Office director for PEER, said Friday: “They’re really sticking by (Kaufman), huh?” Rosenthal said state officials have known for years that employees had concerns about how smaller facilities are monitored, and acted only after the whistleblower complaint went public. She emailed Hunsaker Ryan in September 2020 about the issue specifically.
Obtained by The Denver Post, the email from Rosenthal mentions the oil and gas company SandRidge Exploration and Production’s Bighorn Pad facility in Jackson County.
The attorney general report notes that the Bighorn Pad facility was permitted despite 2017 modeling indicating that emissions could be more than six times higher than federal limits.
“Thank you for the thoughtful input and request to the Department,” Hunsaker Ryan responded to Rosenthal’s email. “… Please allow the Division a couple of weeks to review in more detail your request and circle back with you.”