Colorado Refinery Suncor Faces Suit From Environmental Groups | Westword

Environmental Groups File Notice to Sue Suncor Oil Refinery

The plaintiffs have documented over 9,000 violations of emissions requirements over the last five years.
The refinery is responsible for tons of air pollution every year.
The refinery is responsible for tons of air pollution every year. WildEarth Guardians / Flickr
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On June 5, three environmental groups — the Sierra Club, 350 Colorado and GreenLatinos — filed a notice of intent to sue the Suncor Oil Refinery in Commerce City sixty days from now.

The refinery has long been identified as a major polluter in the area, and activists say they’re now ready to use a different strategy to hold Suncor accountable. Under the federal Clean Air Act, citizen groups can sue polluters that violate emissions standards or limitations, and a sixty-day notice is the first step.

“What we're looking for is stronger enforcement and, ultimately, enforcement of the law,” says Lucy Molina, a longtime community activist and field organizer with 350 Colorado. “The law has not been kept all these years; otherwise, nobody would know me.”

Molina has long been the face of the push to protect the community that lives around the refinery; she wants better conditions for her children than those she experienced while growing up in Commerce City right by Suncor.

“Before, nobody knew what was going on. In fact, some people didn't even know there was a community living there,” Molina says. “They thought it was just surrounded by industry.”

The plaintiffs are asking the federal court to impose penalties for Suncor’s alleged emissions violations and to issue a court order instructing Suncor to remediate for past harms as well as be accountable into the future. Unlike with other lawsuits, the plaintiffs will not collect a judgment even if they win. If a monetary penalty is issued by the court, Suncor would instead pay the U.S. Treasury. The money would then go into the nation's general fund and not be specified for any environmental project.

History of Violations and Lack of Punishment

“The reason that we felt compelled to go in this direction is Suncor’s chronic history of exceeding the limits in its air permit,” says Ian Coghill, an attorney with Earthjustice, which is representing the community groups. “Suncor is already one of the largest pollution sources in the state, even if it was abiding by the limits in its permits.”

However, according to the notice to sue, Suncor has regularly exceeded even those limits. The plaintiffs have documented more than 9,205 violations of Suncor’s permit and other pollution regulations in the past five years.

According to the notice, Suncor exceeded limits for carbon dioxide, sulfur dioxide, volatile organic compounds, nitrogen oxides and hydrogen sulfide in fuel burned in boilers, heaters and flares on its campus during that time. The document lists dozens of Clean Air Act standards that Suncor has violated over the years, usually repeatedly; it also lists other legal air quality or pollution standards that Suncor reportedly violates regularly.

“The health risks created by these pollutants threaten the already susceptible nearby residents, who have among the highest rates of several diseases associated with air pollution, including asthma, cardiovascular disease, and diabetes,” the notice reads.

The plaintiffs believe the state has moved too slowly on enforcement and hasn’t used all the tools available. In February, Suncor settled with the Colorado Department of Public Health and Environment for a record $10.5 million for unpermitted releases in 2019, 2020 and 2021. Only $2.5 million was a penalty; the other $8 million will go toward decreasing the number of power losses Suncor has each year.

“From our calculations, the maximum penalty that was going to be available to the state in that circumstance could have exceeded $30 million,” Coghill says. “That is a very big difference between what could have potentially been imposed and what actually happened. … The other problem is that even that recent settlement covered violations from over four years ago.”

Molina sees a double standard in how the government treats regular citizens who break the law and Suncor.
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Commerce City activist Lucy Molina thinks it's high time someone took action on Suncor.
Lucy Molina Facebook

“If I have an expired permit, if my car is emitting too much toxins, I get a ticket. I can't even get my license plates renewed,” she says. “They not only exceed violations all the time...they have operated with expired permits allowed by our own government.”

The CDPHE has been in the process of renewing one of Suncor’s two air permits for over two years; it submitted a revised permit to the Environmental Protection Agency on May 31.

The notice to sue cites three compliance advisories that the CDPHE’s Air Pollution Control Division has issued Suncor. Those advisories notify a pollution source of alleged violations and open a state investigation. Suncor received advisories in 2021, 2022 and 2023. The February settlement was the resolution of the first two advisories.

Environmental groups don’t see that settlement or the three advisories as enough to really hold Suncor accountable. That’s why they plan to sue.

“Whatever penalty might be imposed in the case has to be enough to make it more expensive to continue to violate provisions of the permit than to satisfy the requirements of the permit,” Coghill says.

According to Coghill, fewer than ten lawsuits are filed against polluters under the Clean Air Act each year because such proceedings are complicated and take a lot of resources. In Suncor’s case, he explains, there are hundreds of emission units on its campus, and different sources of emissions have different legal stipulations. Tracking all of those down is often prohibitively difficult — but enough is enough, according to Molina.

“I always say justice is not charity,” she says. “We're not looking for favors. … A $40 billion entity like Suncor should be a better example.”

Coghill notes that Suncor has the resources to comply with its permits by investing in better emission-control equipment without risking people’s gas prices. An investigation by the Lever showed the refinery sends more cash to shareholders than it spends on safety measures each year.

The groups must wait sixty days from this notice to officially file a lawsuit under Clean Air Act rules for citizen suits. That waiting period is designed so that state or federal regulators can decide whether to file a lawsuit over the same violations instead.

According to Richard Mylott of EPA public relations, the EPA is reviewing the notice of intent now.

“The agency continues to focus on achieving air quality improvements within the Commerce City/North Denver area through our Clean Air Act authorities, including engaging with the state and the communities disproportionately impacted by pollution,” Mylott adds.

The CDPHE says it is aware of the notice but does not typically comment on litigation. Suncor did not reply to requests for comment.

According to Molina, if either the EPA or CDPHE were to file suit, it would be a step toward rebuilding trust between the community and the government. But even if neither agency steps in, she promises that the fight will continue.

“What I can tell my community and our governmental leaders from the federal level to the local level is that I'm just getting started,” Molina says.
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