Suncor Permit Renewal Shows Limits of State Laws That Could Change in 2022

Despite community requests that the permit for the Suncor refinery in Commerce City be suspended, the Colorado Department of Public Health and Environment's Air Pollution Control Division sent the proposed permit to the Environmental Protection Agency for review on February 8. While the federal agency could determine that the permit violates the federal Clean Air Act, residents aren't holding their breath.

According to Lucy Molina, a frontline community organizer with 350 Colorado who lives in Commerce City, the CDPHE warned the community that it would likely approve Suncor’s permit before the process even started. She considers the CDPHE sending the permit directly to the EPA a clear example of environmental racism. “It feels hopeless, sometimes, like, where do we go from here?” she asks. “How will the EPA help if our own government, our own state, is not willing to protect the community?”

In a statement offered through Andrew Bare, a communications and outreach specialist, the APCD says the permit would require Suncor to reduce air pollution and be more transparent with emissions data. The statement emphasizes that the department encouraged public input by holding meetings outside of traditional working hours and with Spanish translation.

“Per law, CDPHE must grant Suncor’s application for renewal of its Title V operating permit if the permit complies with all legal requirements,” the statement continues. “Under the law, CDPHE has authority to strengthen emissions monitoring and reporting standards in the permit, and the department used that authority to significantly strengthen the permit.”

The draft permit calls for Suncor to post continuous emissions monitoring data and increase monitoring requirements for several toxic chemicals, such as hydrogen sulfide, according to the APCD statement. Molina is skeptical of Suncor’s additional air monitoring, though, because she says that history shows self-monitoring doesn’t work. “The system is working as designed,” she adds. “It was never designed to protect us; those laws were set to protect them.”

Molina praises efforts like House Bill 1266, an environmental justice act that was approved during the last legislative session, but says that the CDPHE is not acting in the spirit of that law.  Proposed legislation in the current session seeks to close any loopholes, however. Sponsored by representatives Chris Kennedy and Serena Gonzales-Gutierrez and Senator Julie Gonzales, the Public Protections From Toxic Air Contaminants Act would strengthen Colorado’s ability to regulate contaminants that harm communities.

“Rather than homing in on a specific facility, [the bill] is aiming to set up new, comprehensive regulatory programs related to air toxics,” says Becca Curry, Colorado policy counsel for EarthJustice, one of the environmental organizations supporting the proposal. “It's not naming any particular toxics or any particular facilities. It's just giving the state really broad authority to regulate any toxins or any emission source.”

The bill would require the CDPHE to set up a state database on toxins. It would also direct the state to implement ambient air quality standards that set overall limits on the amount of toxins that can be in the air at any given point, rather than setting limits by individual facility. Activists in Colorado have long called for such health-based limits.

The EPA said that it would implement those standards in addition to its current standards when the Clean Air Act was passed in the 1970s, but the process has been slow. Currently, the agency issues National Ambient Air Quality Standards for six pollutants, including particle matter and ozone, but those standards don't account for benzene or hydrogen cyanide — two of Suncor's primary emissions. And Colorado has a history of non-compliance with the national standards for ozone.

Meanwhile, states such as California and Texas have set additional ambient air quality standards in lieu of EPA action. “That's what this bill this year is directing the state to do,” Curry says. “It's saying we're not going to wait on the EPA to do that. We're going to follow the lead of other states that have set these ambient air quality targets.”

“Self-regulation is like they get to tell us what's not deadly enough for us,” Molina adds. “They get to set the limits, but we're still dying. We're still getting sick.” Her fifteen-year-old daughter has struggled with migraines for years, an ailment that Molina attributes to poor air quality in the neighborhoods near Suncor.

The CDPHE web page on hydrogen cyanide addresses claims that Suncor got to set its own limits on the chemical with this: “Permit applicants can ask for emissions limits for some substances. CDPHE reviews these requests to figure out if they meet requirements. CDPHE must issue the permit if the requested limit does not violate federal or state laws and regulations.”

That language is an example of why ambient air quality standards are needed, Curry says. If the bill becomes law, she adds, there will be better modeling and measurement of air pollution prior to permit approvals because the APCD will have a benchmark to refer to, rather than a patchwork of limits set company by company.

Even if the bill becomes law, it wouldn't impact the permit for Suncor Plant 2 now with the EPA. But it could affect Suncor’s permits for its Plant 1 and Plant 3 facilities; a court recently ordered the APCD to act on Suncor’s permits without further delay. It would also allow the CDPHE to open permits for review that aren’t yet up for renewal. “There's some bad language in Colorado's current law that the division sees as tying its hands,” Curry says. “They genuinely feel like they don't have the power right now to go above and beyond the EPA.”

Though spokesperson Mita Adesanya, Suncor says that it followed all the requirements of the permit process.

“We continue to make improvements to reduce the environmental impact of our operations and have voluntarily implemented an enhanced community air monitoring program to improve transparency and accessibility of air quality information,” the statement says. “Data from the Commerce City North Denver (CCND) Air Monitoring program’s reports shows all measured compound concentrations are below acute health guideline values in all neighborhoods.”

Molina doesn’t buy that narrative. “They have poisoned our waters,” she says. “They have poisoned our soil and our air. The only thing that we have right now is a resilient community that is still fighting back. We're dying, and we found the culprit, and unfortunately, our government is a culprit also.”

The EPA has until March 25 to review the permit and suggest revisions.