Colorado air quality regulators approve ozone plan they know will fail

Polis administration is poised to challenge a federal mandate on the sale of cleaner-burning gasoline

By: - December 19, 2022 4:00 am

Smog shrouds Denver’s skyline behind Interstate 25 traffic on Aug. 18, 2021. (Chase Woodruff/Colorado Newsline)

Colorado air quality regulators last week took another series of halting steps towards addressing the state’s long-running ozone problem, rejecting proposals from environmental advocates aimed at shaking up a complex, slow-moving process that they say has repeatedly failed to produce results.

State officials acknowledge their latest set of plans won’t bring Colorado’s Front Range into compliance with federal health standards for ozone, a hazardous air pollutant. They expect to be flunked again by the Environmental Protection Agency and repeat the process, part of a package of air pollution rules known as a State Implementation Plan, in the hope of meeting the standards by 2027. The plan sidesteps, for now, a looming battle over a federal requirement for cleaner-burning gasoline, and large sections were withdrawn and will be rewritten next year after the discovery of a major calculation error that underestimated oil and gas emissions by nearly half.

“At the end of the day, they voted for a failed plan,” said Jeremy Nichols of environmental group WildEarth Guardians. “And that speaks volumes to their commitment and ability to protect clean air for Colorado.”


In a marathon four-day hearing, members of the state’s Air Quality Control Commission considered a range of revisions to Colorado’s SIP rules recommended by staff from Gov. Jared Polis’ administration. The rules apply to a nine-county region in and around Denver, which has struggled for decades to meet EPA standards for ozone, and was downgraded to a “severe” violator of the federal Clean Air Act earlier this year.

In a pattern that has recurred frequently at the AQCC in recent years, commissioners sympathized with, and even echoed the frustrations of, clean-air advocates who want faster, bolder action to reduce pollution — and then voted nearly unanimously on Thursday and Friday to adopt the more cautious, incremental policies endorsed by the Polis administration’s health department.

Mike Silverstein, chair of the Regional Air Quality Council, an intergovernmental organization that helps lead the state’s planning efforts, urged commissioners to have faith in what he called an “iterative process.”

“It’s not the final action you’ll be taking on air quality,” Silverstein said. “We’re in front of you every couple of years with the next SIP.”

The definition of insanity is doing the same thing over and over again and expecting different results.

– AQCC commissioner Elise Jones

Silverstein, alongside staff from the state’s Air Pollution Control Division, acknowledged that a key part of the plan the state will submit to the EPA for review — an “attainment demonstration” showing projected ozone levels compared to the agency’s latest health standards — will receive a failing grade.

“We’re close to 80 (parts per billion), and we need to be at 70 (ppb),” Silverstein said. “This is an administrative exercise, to approve this plan, get this off our plate, because if it’s on our plate, we have to do the work to redo it all.”

Environmental groups, as well as a coalition of local governments, had urged the AQCC to reject the failing attainment demonstration, rejecting Silverstein’s characterization and arguing that the commission has a “statutory duty” to enact an adequate SIP, or else none at all.

“If the commission were to reject this SIP submission, it would send a powerful statement to the division that when it comes to ozone, clean air and public health do come first, and that this commission will not settle for failed plans that don’t get the job done,” Nichols told commissioners in testimony Wednesday.

AQCC commissioner Elise Jones, a former Boulder County commissioner and director of the Southwest Energy Efficiency Project, was the lone vote against the plan’s approval.

“The definition of insanity is doing the same thing over and over again and expecting different results,” she said.

Other AQCC members expressed faith in the ongoing process. Commissioner Patrick Cummins, a policy advisor at Colorado State University’s Center for the New Energy Economy, called Front Range ozone pollution “an incredibly challenging problem to solve.”

“As imperfect as it may be, the SIP process is what it is,” Cummins said. “This may sound — I don’t how it’ll sound — but I don’t see this as failed. I don’t see this as not working. I see this process as working as it should.”

From ‘serious’ to ‘severe’ violator

After years of incremental progress, ozone levels along the Front Range took another turn for the worse in 2021, spiking to their most hazardous concentrations in more than a decade and causing a record 65 daily health alerts in the Denver metro area.

Ozone, which peaks in the summer months, is formed by chemical reactions between sunlight and certain “precursor” pollutants, including nitrogen oxides and volatile organic compounds. Those precursors are emitted by a long list of local sources topped by oil and gas facilities, motor vehicles, industrial facilities and lawn and garden equipment, in addition to a significant amount of “background” ozone transported from other states and even overseas, according to RAQC data.

A chart from the Regional Air Quality Council summarizes the estimated contribution of various sources to Front Range ozone levels. (RAQC)

The state is currently failing to achieve both the EPA’s latest 70 ppb ozone standard, enacted in 2015, as well as a less stringent 75 ppb limit passed in 2008. Scientists say no level of air pollution is known to be safe, and the World Health Organization recommends a much lower ozone limit of roughly 50 ppb.

It’s Colorado’s violation of the 2008 standard that has begun to trigger some of the strictest requirements under the Clean Air Act. The region’s “severe” violation status followed its classification as a “serious” violator in 2019. Each downgrade triggers a new level of mandatory pollution controls to be included in the SIP.

The Polis administration, however, is poised to challenge one of those mandates after removing from its plan a requirement for the sale of reformulated gasoline, a cleaner-burning but more expensive fuel, from June to September.

“Colorado has requested that EPA consider possible flexibilities with respect to this requirement, including whether there are more cost effective requirements,” the administration wrote in AQCC filings. At the request of APCD staff, the plan approved by the commission was stripped of all references to the reformulated gas program.

Oil and gas industry groups, meanwhile, urged the commission to revert to a strategy it had employed prior to 2019, and cite the impact of international sources — which account for roughly 10% of Colorado’s ozone — to obtain a waiver from EPA mandates. That approach, taken by former Gov. John Hickenlooper’s administration, was rescinded by Polis upon taking office.

“International emissions are real, and ignoring them only hurts us,” said Chris Colclasure, an attorney representing the Colorado Oil and Gas Association and the American Petroleum Institute. “If we have options to avoid outdated or ineffective mandates, we need to explore those options.”

Industry groups also sought to downplay the scale of an error made by state regulators in their initial draft of the updated SIP. In a filing, APCD staff wrote that their updated estimates of emissions from certain industry operations were nearly double the initial figures, but industry representatives contended that the gap is far smaller. The error led to the state’s withdrawal of several major sections of the SIP, which will be rewritten and submitted to the EPA next year.

“Local governments carefully analyzed what the state was claiming against the actual pollution data and found a huge discrepancy,” Cindy Copeland, an air and climate policy advisor for Boulder County, said in a statement. “To the (APCD’s) credit, they have now committed to fixing these serious problems.”

‘Stakeholder engagement’

Silverstein said the RAQC plans to conclude a comprehensive “stakeholder engagement” process in the next 18 months, and return to the commission with an updated plan to attain both ozone standards by 2027.

Environmental groups praised the AQCC’s adoption of language, proposed by Jones, stipulating that the commission “expects” regional and state officials to “evaluate ozone reduction strategies across a broad range of ozone precursor sources,” including oil and gas, transportation, lawn equipment and more, and propose them for adoption by the commission in the future.

Even that non-binding language, however, came with another round of compromises, with a majority of commissioners preferring “expects” over “directs,” and stipulating that the process need only “commence” in 2023, not be concluded by then.

“The AQCC offered some direction on what needs to happen in 2023, but our state continues to fail to put together a plan that will meet air quality standards,” said Kirsten Schatz, a clean air advocate for the Colorado Public Interest Research Group. “We need state leaders to step up in 2023 and commit to additional actions including phasing out highly polluting gas-powered lawn and garden equipment; expanding transit, walking and biking options; cutting emissions from the oil and gas sector and ratcheting down emissions from our biggest polluters.”

“If people feel a little uncomfortable that it’s ambitious … it’s good, because we need to do more,” Jones said. “We are failing, collectively, on this issue.”


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Chase Woodruff
Chase Woodruff

Chase Woodruff is a senior reporter for Colorado Newsline. His beats include the environment, money in politics, and the economy.