The Suncor oil refinery in Commerce City is one of Colorado’s largest sources of air pollution. (Chase Woodruff/Colorado Newsline)

At the pediatric clinic where Dr. Sheela Mahnke sees her young patients in Thornton, 85% of the families who walk through the door are on Medicaid. Many come from the predominantly low-income and Latino neighborhoods in the north Denver area that have struggled with a long history of air and water pollution. And over the last two years, many have told a familiar story.

“I hear from families when they come in: ‘We were outside a lot this weekend, my son’s asthma was really bad,’” Mahnke said in an interview.

On 67 days and counting this year, air quality in the Denver metro area has reached a level deemed by the Environmental Protection Agency to be “unhealthy for sensitive groups” — a designation that not only includes any adult with a heart or lung condition, accounting for roughly half of all Americans, but anyone over the age of 65, and all children under 18. Being more active, kids breathe faster and take in more air than adults, Mahnke explains, and their developing lungs can put them at greater risk.

This year’s 67 days of unhealthy air for children along the Front Range is double the figure recorded through the end of summer last year, and triple the tally from 2019.

“Parents are worried,” Mahnke said. “We say as a society that we value children, and we want to leave the world better for them, but we repeatedly don’t act on that.”

For many people in the tight-knit world of air quality management, the concern over this summer’s worsening smog was deepened by a frustrating sense that it could have been avoided. It was, at least in part, they say, the accrued result of more than a decade of fateful policy choices made by regulatory bodies like the state’s Air Pollution Control Division, a branch of the Colorado Department of Public Health and Environment.

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Colorado’s Front Range has struggled for decades with the impacts of ground-level ozone, a hazardous air pollutant linked to a wide variety of negative respiratory and cardiovascular risks. Ozone is formed by chemical reactions between sunlight and certain “precursor” pollutants like nitrogen oxides and volatile organic compounds.

Emissions of these ozone precursors were at the center of an explosive whistleblower complaint filed earlier this year by three employees of the APCD’s modeling and emissions inventory unit, who are tasked with calculating the air-quality impacts of pollution sources. The whistleblowers allege that the division has engaged in a “pattern of unlawful conduct” by instructing modelers to ignore certain short-term pollution standards in violation of federal regulations under the Clean Air Act.

“This violation of the law is also contributing directly to chronic health problems, premature deaths, and severe injury to the environment by permitting ever more dangerous emissions,” reads their complaint, which was filed on March 30 with the EPA’s Office of Inspector General. The complaint has prompted investigations by both the EPA and Colorado Attorney General Phil Weiser.

In an emailed response to questions, APCD spokesperson Andrew Bare said that “the division processes permit applications for minor sources consistent with” regulations.

“Because the division’s practices are currently undergoing review as part of an independent investigation facilitated by the Attorney General’s Office, the division will not comment further at this time,” he added.

The three modelers are far from the first employees to voice such concerns. Two other employees had previously lodged similar objections to supervisors about the APCD’s modeling practices, according to internal emails submitted as part of the whistleblower complaint. In a May request to Weiser to expand the scope of the state’s investigation, the group Public Employees for Environmental Responsibility indicated that several other current and former state employees had come forward, and multiple former staffers have spoken to Newsline and other media outlets to echo the whistleblowers’ claims.

And in a separate and previously unreported whistleblower complaint filed in 2018, an employee of the APCD’s inspections unit alleged a pattern of “politically-motivated interference” and “false and misleading statements” in relation to enforcement of state regulations on Colorado coal mines.

“The executive management team was inappropriately requested to halt investigation of these violations in 2013 and 2015, and have enforced this restriction on (APCD) staff, leading to ongoing noncompliance and excess emissions that negatively affect public health and the environment,” wrote division staffer Ben Cappa in a complaint filed with the Colorado State Personnel Board on June 14, 2018. Cappa’s case was resolved through a settlement in April 2019, records show.

As these concerns have piled up amid the worst summer for Colorado’s air quality in over a decade, the APCD, the state’s air pollution watchdog, has gone quiet, repeatedly denying or ignoring requests to interview top officials. It has withdrawn a proposed traffic-reduction program in a sudden and strange maneuver cheered by business groups, and consistently sought to place a focus on out-of-state wildfire smoke as a cause of the Front Range’s smoggy skies.

In all of this, critics from inside and outside the APCD see a textbook case of what political scientists call “regulatory capture” — an agency hobbled by a deep-seated culture of deference to the very polluters it’s tasked with regulating. And they’re baffled by the division’s lack of transparency and reform, despite years of promises to do better.

“The state government’s continued insistence on sticking with a failed policy … just doesn’t make any sense to me,” said Kevin Bell, a PEER attorney representing the whistleblowers, referring to the APCD’s prohibition on modeling. “Trying to figure out why it is they haven’t made that decision, or talked about it publicly, or even scolded somebody — it strains credulity. I don’t know why they’re not doing it. It seems like such an easy question.”

A ‘culture of fear’

Jeremy Murtaugh, a former inspector who spent 13 years at the division before leaving in 2019, wasn’t surprised when he heard about the recent whistleblower complaint, which he said aligned closely with his experiences at the agency, including noticeable changes in its culture he witnessed over the last decade.

“At some point (around) 2014 and 2015, it became common for supervisors and mid-management to refer to the regulated sources as our ‘customers,’ which I thought was not right,” said Murtaugh.

The shift in attitude was accompanied by new policies that impacted how regulators did their work, like additional processes for supervisory approval of the periodic reports filed by inspectors. Where inspection reports were previously only subject to quality-assurance checks focused on documentation and technical matters, they now faced additional reviews that Murtaugh said amounted to political interference.

“After about 2015, there was a new approval step, where, after the quality-assurance check, it went to the inspector’s supervisor where the supervisor could require you to make changes, based on whatever they wanted,” Murtaugh said. “They would often say, ‘Well, I don’t think this is a violation,’ and basically make you take stuff out. Or, ‘This is a touchy subject, we don’t want to get into this.’ It really brought to bear a political-tinged pressure to inspectors doing their work.”

These shifts within the APCD occurred in the context of an unprecedented boom in Colorado’s oil and gas industry, which rode the wave of the so-called “shale revolution” — made possible by technological advances like fracking and horizontal drilling — to rapid increases in production and profits. Between 2010 and 2019, the state saw a nearly six-fold increase in the amount of oil it produced annually, with nearly all of that growth taking place in northeast Colorado’s Denver-Julesburg Basin, in an area along the northern Front Range already struggling with poor air quality.

The onset of the 2010s drilling boom saddled the APCD with a massive new workload in permitting, inspecting and enforcing regulations on a fast-changing industry. A far cry from the short vertical wells and small pump jack stations that once typified oil and gas extraction, shale drilling had within the space of just a few years brought to the Denver metro area’s doorstep a vast expansion of heavy-industrial development: not only huge multi-pad well sites but gathering lines, tank batteries, compressor stations, waste-disposal facilities and other necessary infrastructure.

In response, critics say, state officials began skirting existing clean-air requirements — a pattern that whistleblowers, in their EPA complaint, called a “culture of permitting at all costs.” The last straw for Murtaugh, he said, was a practice adopted by the agency that allowed oil and gas companies to operate large drilling sites for up to 90 days without obtaining a permit.

“My supervisor told me to drop it,” he said. “I didn’t.” Murtaugh says that while he and other APCD staffers occasionally stood up to such pressure, its policies have generally created a “culture of fear” that leads to self-censorship by inspectors and other employees.

“Most people will do sort of anticipatory editing, which has kind of a knock-on effect,” Murtaugh said. “Not just, out there in the open, ‘You have to change this’ — nobody wants to have to do more work, so you just end up ignoring stuff.”

The agency’s internal culture is characterized similarly in Cappa’s 2018 whistleblower complaint, which Newsline obtained through a records request to the State Personnel Board. “Although management appears to agree that politically-motivated interference with CDPHE cases is inappropriate,” Cappa wrote, “they are also paralyzed from action with the fear that non-compliance with the directive to stand down would result in their termination.”

Asked about Cappa’s complaint, Bare wrote: “This is a personnel matter that we won’t comment on, except to say Ben is still an employee at the Air Pollution Control Division.”

Marie Bernardo, another former division employee, told The Colorado Sun in April that she agreed with the substance of the whistleblowers’ complaints, saying that the modelers “just want the decisions to be made on science.”

Another former APCD employee, who requested anonymity in order to avoid reprisals, spoke to Newsline and confirmed Murtaugh’s accounts of supervisor approval of inspection reports, and of regulated industries being referred to as the division’s “customers.”

“I think there is a culture issue, and it starts on the permitting side,” said the former employee. “The focus was very much on issuing permits, and it was very clear that that was the priority.”

“This is the path that we set ourselves on a decade ago,” the former employee said.

A long history of dissent

The filing of the EPA whistleblower complaint in March followed years of internal objections within the APCD over its practices, according to documents obtained by PEER through an open-records request and submitted as part of the complaint.

Tensions between division management and the whistleblowers — Rosendo Majano, DeVondria Reynolds and Bradley Rink — reached a breaking point following an instruction not to apply certain short-term federal health standards when assessing permit applications for air-pollution sources. The policy was set by APCD director Garry Kaufman and chief strategy officer Robyn Wille in a March 15 meeting, the emails show, and modelers quickly objected.

“I feel like I have stepped back in (t)ime and Doris and Rosendo are arguing about how this is wrong,” read an email from Emmett Malone, the modeling unit’s supervisor, referring to Majano and Doris Jung, a former employee of the modeling unit, who had expressed similar concerns in communications dating back to 2011. Majano transferred to another unit within CDPHE in 2020, while Jung is no longer employed by the state.

The March 15 order prohibited employees from modeling emissions sources to assess compliance with short-term standards for nitrogen dioxide, an ozone precursor, and sulfur dioxide, another well-known hazardous air pollutant. The whistleblower complaint states that the policy codified a “longstanding informal practice of the APCD” to ignore such standards for certain “minor sources,” regardless of their cumulative impacts.

“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 complaint states. “This (in) turn would have the final effect of reducing the NO2 emissions to comply with the 1-hr NO2 (standards) and in turn reducing the formation of ozone.”

The complaint is currently being investigated by staff at the EPA’s Region 8 headquarters in Denver. Separately, Weiser authorized an independent investigation into the complaint, appointing four attorneys from Atlanta-based law firm Troutman Pepper as special assistant attorneys general charged with carrying out the probe.

In addition to the allegations contained in the initial whistleblower complaint, however, PEER relayed a host of new information provided by several other former APCD employees in a follow-up letter to Weiser on May 7, asking the AG’s office to expand the investigation’s scope.

“The information related to us indicates apparent intentional manipulation and misrepresentation of data, hiding critical information from a federal agency, editing of reports to include false information, preferential treatment of certain facilities, disregard of environmental justice concerns raised by staff further harming already disproportionally impacted communities, and approving monitored data that did not comply with EPA’s requirements,” the letter read.

“Because there’s an ongoing independent investigation into these claims, we will not comment on the specifics of the May 7 letter,” Bare wrote in an emailed response to questions. “CDPHE asked for the investigation and asked for it to be comprehensive.”

PEER representatives say they’re concerned that in initial interviews in the last several weeks, the attorneys conducting the investigation were “reluctant to expand the scope.”

“We offered them some contacts of former employees to talk to, and they were not interested,” said Chandra Rosenthal, PEER’s Rocky Mountain director. “They seem to really want to limit the scope of the investigation to exactly what was in the whistleblower complaint, not anything that’s come up since then.”

‘Nothing changed’

When Murtaugh left the APCD in 2019, he went public with some of what he had experienced within the division, and a new state administration under Gov. Jared Polis pledged to take action.

Responding to Murtaugh’s claims, incoming CDPHE director Jill Hunsaker Ryan told The Colorado Independent that “people are going to be held accountable” and said that the division’s culture may need to change. “People within the division are excited,” Ryan said. “Maybe they’ve felt oppressed in wanting to do more.”

Asked about Ryan’s comments more than two years later, Murtaugh’s assessment was blunt.

“It was a PR statement,” he said. “I still have some good friends there. … Nothing changed.”

Repeated requests by Newsline to interview Ryan, Kaufman and CDPHE Director of Environmental Programs Shaun McGrath were declined or ignored in the weeks leading up to this story’s publication.

Through a spokesperson, Ryan issued a statement touting the APCD’s “many successes” over the last several years, including stronger oil and gas regulations, a new electric-vehicle standard and a record $9 million settlement over violations at the Suncor Energy oil refinery north of Denver.

“I feel like the division is rising to the occasion by being responsive to my direction, new legislation and the resulting rulemakings, and the (Greenhouse Gas) Roadmap strategies sector by sector,” Ryan said. “I am working to increase the person power of the division and to secure leading edge technology in order to provide more efficient permitting, monitoring and enforcement functions, as we work toward increasing our capacity and capabilities.”

In response to the whistleblowers’ claims, Colorado environmental activists have called for Kaufman’s removal, especially following an April report alleging a conflict of interest in the APCD’s granting of regulatory exemptions to mining company Newmont Corp., which Kaufman had represented in a three-year stint outside the agency as an attorney at Holland & Hart from 2014 to 2017. But Polis has largely remained silent on the issue, and the walls around the Air Pollution Control Division so far show no signs of cracking.

“Like many issues of regulatory enforcement, it’s ultimately a political one,” said PEER’s Bell. “Why has this exact same management philosophy endured for so long? Jared Polis talks a big game about wanting to care about climate change and air quality, but the easiest thing he could possibly do is replace a politically-appointed official, and he hasn’t even given a hint of doing that.”

“There are a lot of smart, dedicated people in the air division who really care about public health,” said the former APCD employee. “And the systems in which they’re doing their jobs don’t always make it easy to do that.”

Murtaugh noted that while Kaufman and politically-connected top officials at the APCD can come and go through the “revolving door” between government and industry, rank-and-file state employees have far fewer options. After resigning and speaking out in 2019, he struggled to find work, despite his years of experience. That’s part of the reason, he said, why despite years of dissent within the division, whistleblower complaints like the one filed in March are so rare — and laudable.

“Doing what they did took a lot of courage,” Murtaugh said.

“People that rock the boat,” he added, “tend to get pushed overboard.”

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