EPA Orders State to Justify Parts of Suncor Air Permit in Response to Petition

The thirteen-year process to secure a new Clean Air Act permit for Plant 2 of the Suncor Oil Refinery is stretching on, as the Environmental Protection Agency announced this week that it partially granted a petition objecting to the permit submitted by the environmental law group Earthjustice.

After Colorado's Department of Public Health & Environment approved the permit in September 2022, Earthjustice filed its objection that October on behalf of the Elyria-Swansea Neighborhood Association, the nonprofit Cultivando, the Colorado Latino Forum, GreenLatinos, the Center for Biological Diversity and the Sierra Club.

The EPA's new notice, which was sent out on August 1, doesn’t invalidate the permit, as environmental groups had hoped, and as some — confusedly — have claimed. It instead directs CDPHE officials to examine several aspects of the permit and issue revisions.

“They're not denying the permit,” says Ian Coghill, senior attorney with Earthjustice. “They don't even really get into the idea of denying the permit in any meaningful way.”

In the same order, the EPA specifically rejected another petition by 350 Colorado asking for denial of the permit. The activist group had argued that the EPA could invalidate the permit because the CDPHE had failed to act on it for years. The EPA concluded that because the department finally renewed the permit, it doesn't need to step in.

“350 Colorado also argues that Suncor’s ongoing history of violations and environmental justice issues show a pattern that is extremely likely to continue to harm the community unless the permit is terminated, and that environmental justice issues raised by EPA in their first objection to the permit have not been addressed,” 350 Colorado said in a statement.

The EPA objected to a draft of the permit in March 2022, but was satisfied that the CDPHE had fixed the issues by August of that year. Suncor — which did not reply to requests for comment — first filed to renew the permit on Plant 2 in 2010. The CDPHE's Air Pollution Control Division was supposed to reply within eighteen months, but didn’t act on the Plant 2 permit until 2021.

After the permit became effective in September 2022, environmental groups objected. The August 1 notice is the EPA’s response to those objections.

The Suncor refinery, which is notorious for contaminating air and water through chemical leaks, was established back in 1931. At one point, it was actually two refineries: one operated by Conoco Phillips and another by Valero. The current operation now has three plants under its purview, two of which transform crude oil into gasoline, diesel and jet fuel, and another that mainly produces asphalt.

Since 2005, when Suncor first combined the plants, it has operated under two separate Title V permits from the Environmental Protection Agency. Advocates have long argued that this makes it harder for the public to hold the refinery accountable.

While it wasn’t central to the EPA notice, the agency did note that it will “work with CDPHE to determine whether there are benefits to be achieved by combining the two Suncor Title V permits.”

According to Coghill, Earthjustice’s petition and the EPA response both focused on three main categories: the facility’s history of permit violations; the way the CDPHE calculated the emissions from the facility; and the way the state treated modifications to the plant that occurred between its two permit revisions.

“We took the position that the permit is required to have sufficient conditions to assure compliance,” Coghill says. “If they're constantly violating, clearly the permit isn't enough.”

The petitioners argued that given Suncor’s long history of exceeding the limits in its permit, there should be additional requirements to ensure that it stops. But the CDPHE did not include any such requirements in its final permit.

In its notice, the EPA directs department officials to evaluate whether the permit can assure compliance without those measures. “CDPHE should explain why each of the additional measures requested in public comments (and again in the Petition) are not necessary to assure compliance,” the EPA writes. “If CDPHE determines that additional operational requirements are necessary to assure compliance, it should revise the Permit accordingly.”

Coghill says it’s a “pretty big deal” that the EPA told the CDPHE to consider Suncor’s violation history in the permit.

In order to calculate the amount of certain pollutants Suncor would emit, the state used emission factors, which multiply the amount of gas burned by a certain number to estimate the emissions. For this permit, the CDPHE used the AP-42 emission factor — a designation that the EPA has said is not reliable for permitting.

The petitioners argue that on-site monitoring is needed to determine the actual level of emissions from Plant 2. In its response, the EPA said the CDPHE must explain why the AP-42 emission factor is representative of the emissions from certain units, and that the agency should consider whether it needs to revise the permit to include stack testing.

“They need to put in an adequate justification to say why the [emission factors] are good enough,” Coghill simplifies. “And if they've determined, 'Yeah, actually, we don't really have enough justification to do that,' then they can't use them. They’ve got to rely on something that's more reliable.”

The last major topic covered in the EPA notice deals with modifications to Suncor in the years between when it applied for the permit in 2010 and when CDPHE replied in 2021. Coghill says that the refinery made over thirty modifications during this time, and that those changes could alter its emissions. However, the changes never got checked out by state inspectors because they were considered minor.

The petitioners argue that the modifications need to be analyzed and added to emissions modeling at the plant. In its notice, the EPA cited several examples of updates that it agrees should be examined to assure compliance and accurate emission calculation.

“The division will decide how to proceed after its review of the EPA’s decision and documentation,” responds a spokesperson with the CDPHE's Air Pollution Control Division. “The division continues working with the EPA, environmental groups, community members and other key stakeholders to develop strong and enforceable permits. The division is committed to reducing air pollution and protecting communities across Colorado, including the Commerce City and north Denver neighborhoods surrounding Suncor.”

If the CDPHE makes changes to the permit, it will open up a new public comment period. But if the state only amends it to clarify and justify certain actions, a new public comment period may not be required.

In the meantime, Coghill describes the EPA’s pushback as a win for the community around the Suncor refinery — many of whose residents wish it would be dissolved entirely.

"Suncor continues to violate its permit just as frequently and egregiously as it has for years,” he says. “The status quo is not getting anyone anywhere, so this is a really strong recognition by the federal government that CDPHE needs to change the way it's approaching Suncor and do more to bring Suncor into compliance with its permit.”