Smog shrouds Denver’s skyline behind Interstate 25 traffic on Aug. 18, 2021. (Chase Woodruff/Colorado Newsline)
Colorado Attorney General Phil Weiser on Friday released the results of an independent investigation into allegations of illegal air-quality permitting procedures made earlier this year by three whistleblowers in the state’s Air Pollution Control Division.
The public report on the findings of the investigation, conducted by attorneys from the law firm Troutman Pepper, says that the APCD’s policies were “inadequate” and that its top official failed to disclose a conflict of interest, but it concludes that whistleblower allegations of falsified or suppressed data were unsubstantiated.
Weiser announced the independent probe in April in response to a letter sent by the three whistleblowers to the Environmental Protection Agency’s Office of Inspector General. The letter alleged a “pattern of unlawful conduct” at the APCD, a branch of the Colorado Department of Public Health and Environment.
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“My department launched this independent investigation because Coloradans need to know that state regulators are properly enforcing air pollution standards to protect air quality,” Weiser said in a statement Friday. “With the conclusion of the investigation, we are releasing this report to apprise the public of the findings of this inquiry and to give CDPHE the information it needs to address concerns raised about the state’s compliance with federal air quality standards and efforts to protect the public health and environment.”
The 50-page report, which was presented to Weiser’s office on Sept. 16 and to CDPHE officials earlier this week, centers on what its authors call a “highly technical and complex facet of air permitting”: the computer modeling techniques commonly used to simulate emissions from regulated pollution sources to assess compliance with federal air-quality standards.CDOL-Report-210922
The three whistleblowers, current and former employees of the APCD’s modeling unit, were instructed by top officials at the division to ignore some of those standards when evaluating certain “minor sources” as part of the permitting process. The whistleblowers’ complaint called the division’s policy a “violation of the law … contributing directly to chronic health problems, premature deaths, and severe injury to the environment by permitting ever more dangerous emissions.”
“The letter to EPA OIG raises some valid concerns, but some are overstated,” investigators conclude in the report.
The report did not substantiate claims by whistleblowers that APCD officials had “ordered (modelers) to falsify data” and “suppress(ed) information” relating to emissions from the Cripple Creek & Victor Gold Mine, though it did fault the division’s handling of the mine’s permit application on several counts.
“While APCD failed to follow mandatory requirements for some modeling inputs and failed to properly justify others, this investigation has not identified evidence of an intent to falsify data or suppress information,” the report states.
Investigators also confirmed that APCD director Garry Kaufman failed to disclose a conflict of interest regarding the Cripple Creek & Victor mine in violation of CDPHE policy. During a three-year stint outside the agency between 2014 and 2017, Kaufman represented the mine’s owner, Newmont Corp., as an attorney at Denver law firm Holland & Hart.
‘Inadequate by design’
In their March 30 complaint, whistleblowers alleged that the APCD’s policy of ignoring certain modeling results violated requirements under the Clean Air Act, which state that regulators must “determine” whether a minor source “will result in … (i)nterference with attainment or maintenance of” federal health standards.
Investigators dismissed that claim, writing instead that such determinations can be made not only through “quantitative” methods like modeling but also through “qualitative” methods, which the report says “may provide an appropriate basis for concluding that the risk of exceeding (health standards) is low.”
The report did find, however, that Colorado’s policies relating to minor-source modeling were confusing and inconsistent. “APCD’s policy … was inadequate to ensure minor sources would not exceed the (National Ambient Air Quality Standards),” investigators wrote.
Kevin Bell, an attorney with Public Employees for Environmental Responsibility who is representing the whistleblowers, said the APCD’s policies were “inadequate by design.”
“There’s a lot of ‘It’s unfortunate that this policy existed the way that it did,’ and not really enough interrogation of why this policy existed the way that it did,” he said. “They kept it as narrow as possible to avoid finding that anybody did anything wrong.”
Bell pointed to the professional histories of the four Troutman Pepper attorneys appointed by Weiser to conduct the investigation as special assistant attorneys general — the Atlanta-based firm is a major player in the world of corporate law, and three of the four investigators represent industrial clients in legal and regulatory air-quality proceedings, according to their professional biographies on Troutman Pepper’s website.
“It’s not particularly shocking that the white-shoe corporate defense firm that specializes in representing energy companies and coal-fired power plant operators concluded that there was nothing wrong here,” Bell said.
In addition to the state’s independent investigation, the whistleblowers’ claims are currently being investigated by officials at the EPA’s Region 8 headquarters in Denver.
CDPHE officials said in a press release Friday that the report “does illustrate the need for more scientifically sound criteria and a better process for determining when to model minor sources,” and announced plans for a review of its procedures.
“I asked for the investigation because we needed to address the allegations comprehensively and transparently,” CDPHE executive director Jill Hunsaker Ryan said in a statement. “We know we need the public’s trust to be effective in reducing air pollution. 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.”
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