Impending Bill Digs Into Problems With Colorado's Environmental Permitting Process

Colorado’s environmental permitting process could use some analysis, according to a bill coming to the state legislature.

In 2021, whistleblowers charged that the Colorado Air Pollution Control Division (APCD)was approving permits regardless of whether those permits met emissions standards, citing eleven examples. In July 2022, the Environmental Protection Agency agreed that the four permits it reviewed were inconsistent with the state’s requirements, recommending a re-evaluation of the state’s permitting process for minor sources of pollution.

"Minor" sources aren’t as insignificant as the label implies. For example, according to the new State Implementation Plan for ozone, minor sources are those that emit under 25 tons of ozone per year. The category includes gas stations and fracking rigs.

“These are really things that people should have already been thinking of as major all along that have fallen under this sort of arbitrary cut-off,” says Andrew Forkes-Gudmundson, senior manager for state legislative and regulatory affairs for Earthworks, an organization that focuses on ending pollution from oil and gas and mining.

The bill, which will be introduced soon, would require the state conduct air-quality modeling for minor sources that could emit more pollution than EPA guidelines allow. The bill would also mandate that either the applicant revises the permit or the state denies it if modeling shows it will exceed those limits. Currently, modeling to determine the potential impact of pollution is required only for major sources, which is anything that produces more than 25 tons of ozone a year (the limit is 100 tons of ozone annually).

The requirements are not retroactive: Those already holding permits can keep them, but if they apply for a modification that would put the project over the EPA limits, that application must fit under the new guidelines.

“The Clean Air Act is clear,” says Becca Curry, Colorado policy counsel for Earthjustice, an environmental law organization. “There's this overarching mandate from the government that we not build these new things, but Colorado is just not doing the requisite level of analysis to know whether or not there would be a violation.”

Pursuant to the Clean Air Act, the EPA sets National Ambient Air Quality Standards for six pollutants, and the Code of Federal Regulations specifies when modeling should be conducted. The bill requires Colorado to follow those guidelines and gives the APCD authority to revise them over time as needed.

“A lot of these concepts are just updating the language and modernizing this law,” Curry says.

For example, non-road engines like the drilling versions used in fracking operations are currently exempt from permitting and from Air Pollutant Emissions Notices, which require reporting of emissions. Additionally, some oil and gas operations use equipment that falls under different air permits, and so the bill would require non-road engines to be counted in emissions counts. The bill also would combine all equipment at the same site, or at sites operated by the same company within a two-mile radius of each other, into one permit.

“It’s trying to consolidate oil and gas equipment into the same permits so that we have a better picture of what air emissions will be,” Curry says.

Forkes-Gudmundson says that he’s unaware of any currently operational oil wells in Colorado that have been modeled to determine their air pollution impact.

“When you see the scope of emissions from some of these so-called minor sources, how big they are, it’s really eye-opening,” he says. “Especially on the oil and gas development side of things, a lot of people just sort of assume they've got permits, so it's fine and it's all been accounted for. And really, virtually every oil and gas development location falls below current modeling requirements.”

Along with combining oil and gas equipment into one permit, the bill specifically gives the state the ability to consolidate sites with multiple permits, such as Commerce City’s Suncor oil refinery.

Encouraging the state to consider sites collectively fits with another main purpose of the bill: creating a single-track permitting system that would help the state consider the cumulative impacts of a pollution source rather than siloing the impact of air, water, soil, radiation and other types of pollution separately, something environmental justice advocates have long pushed for — and which the Colorado Oil and Gas Conservation Commission is technically already required to do.

“[This bill] makes these agencies talk to each other on the individual permit process, because right now the extent of their cooperation is basically a once- or twice-a-year meeting where they sort of talk at each other about what they're doing," Forkes-Gudmundson says. "That hasn't proven very effective in the cumulative impact space.”

To fix that problem, the bill proposes requiring the APCD to model sources applying for permits before the permit is passed to the COGCC, which oversees permits for drilling. Currently, the two agencies don't always receive the same information, as evidenced by a data discrepancy discovered while the state was revising its State Implementation Plan for ozone in 2022.

A Local Government Coalition discovered the issue when it noticed that data from the APCD didn’t match Comprehensive Area Reports filed with the COGCC, causing the APCD to rescind part of its plan because it drastically underestimated ozone precursor pollution from oil and gas operations.

The proposed legislation aims to prevent such data issues in the future.

“I've been calling it 'stopping this game of agency-analysis hot potato,'” Forkes-Gudmundson says. “We're gonna throw it over here to do one thing and throw it over here to do another thing, and they're not talking about it. ... The biggest thing to carry away from this is that we're trying to empower both agencies to carry out their missions as effectively as possible.”

The APCD has expertise in air modeling and is building capacity to carry it out. The COGCC doesn’t have those resources, and having the APCD go first on permits means it doesn’t have to acquire them in order to correctly analyze cumulative impacts.

The legislation, which will be sponsored by state representatives Jennifer Bacon and Jenny Willford, also focuses on response to community, modernizing the APCD and COGCC complaint system.

“The process is pretty opaque and can be really frustrating and can really feel disillusioning for people that have been impacted by these things,” says Forkes-Gudmundson.

Evidence that citizens submit at the time they make their complaints, including photos and videos, aren’t currently included in the enforcement process. Earthworks has optical gas imaging cameras that allow people to visualize invisible pollutants like methane, and Forkes-Gudmundson says that although the agencies and the industry itself uses the same equipment, if an Earthworks field advocate submits a video from such a camera, it doesn’t count.

Rather, current state law stipulates that the agency must verify emissions problems a second time before it can start an investigation.

“It would be like if a cop investigating a bank robbery would have to go back and watch the burglary happen again and, if the robber didn't go back to the same bank and rob that same bank again while the police were watching, then there would be no violation,” Forkes-Gudmundson says.

The bill says that state agencies can consider evidence submitted by citizens, although agencies are still allowed to throw out frivolous or trivial complaints and will still conduct a full investigation before determining if enforcement is needed. Agencies will be required to reply to citizens who submit complaints, and if the APCD doesn’t take action within sixty days, the bill allows citizens to directly sue companies committing violations at that point.

“The goal of this is to really empower impacted communities to report problems that they see and to give them an expectation that the agency is going to follow up,” says Forkes-Gudmundson.

Curry and Forkes-Gudmundson expect the oil and gas industry to say that the provisions of the bill will kill the industry, but they don’t think that’s true. For example, Forkes-Gudmundson points out, the industry made the same claim when the state passed Senate Bill 181 in 2019, which allowed local governments to regulate oil and gas within their jurisdiction and instructed the COGCC to explicitly consider health and safety in its regulation of the industry.

Yet in 2022, nearly 1,500 new oil wells were approved in the state.

“These are just super commonsense regulations that get the state into compliance with the Clean Air Act,” Forkes-Gudmundson says. “It's crystal clear that we can't be permitting things that contribute to violations of the ambient air-quality standards, and the only problem the industry should have, or would have, with getting new permits is if their operations would contribute to those violations.”

Curry says the bill empowers the state to use its modeling tools to see the real impact of proposed projects and changes for more than just major sources, because everything adds up.

“Minor sources are actually the vast majority of sources in Colorado, including pretty much all oil and gas production sources,” she says. “We can't just chalk it up to, ‘These are minor sources, they don't have much of an impact.’ They do.”