Colorado AG Probe Confirms Air Pollution Failures  

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Friday, September 24, 2021
Chandra Rosenthal (303) 898-0798
Kevin Bell (202) 247-0298

Colorado AG Probe Confirms Air Pollution Failures

Pollution Permits Improperly Issued; Managers Took “Unjustified” Actions


Washington, DC — A report issued today from a law firm engaged by the Colorado Attorney General found the state’s environmental agency improperly issued air pollution permits that exacerbated air quality violations, substantiating claims by whistleblowers represented by Public Employees for Environmental Responsibility (PEER).  The report, however, concluded that “erroneous” actions by Colorado Department of Public Health and Environment (CDPHE) managers were based upon “lack of understanding” rather than bad intent and excused a conflict-of-interest violation by the Air Pollution Control Division Manager Gary Kaufman.

That report looked into charges leveled on March 30th by CDPHE’s entire air modeling staff that the agency had directed them to issue illegal permits, ignore violations, and refrain from verifying pollution emissions.  While those charges were directed to the U.S. Environmental Protection Agency’s Office of Inspector General, the Colorado Attorney General nonetheless opened a probe. Because it is the legal representative for CDPHE, it retained a private law firm to act as “special attorney generals” to avoid a blatant conflict of interest.

The resulting inquiry looked at several permits flagged as improper by the modelers and found:

  • CDPHE lacks a “well supported policy for ensuring minor source permits would not exceed” national air quality standards;
  • “CDPHE issued permits with unaddressed [air pollution] exceedances…”; and
  • “CDPHE admitted that the modeling analysis for CC&V contained errors, but” issued the permit for the mine anyway. Gary Kaufman, CDPHE’s top air quality official, had served as a lawyer for this mine but intervened in how the permit was handled.

“The bottom line is that CDPHE acted in a way that protected neither public health nor the environment and its Air Pollution Control Division is out of control,” stated Rocky Mountain PEER Director Chandra Rosenthal. “Even if these managers acted improperly because they did not understand the legal requirements, they still should be replaced with people who understand the Clean Air Act in letter and spirit.”

The only major point in which the report disagreed with the air modeler whistleblowers was whether CDPHE managers, including Kaufman, engaged in “falsification” to facilitate improper issuance of a permit for the CC&V mine.  The report authors found that critical “facts were insufficiently justified or incorrectly applied” but because they were not themselves falsehoods, however inappropriately applied, there was no falsification.

“This report sets an incredibly low bar for honesty by public servants,” remarked PEER staff Counsel Kevin Bell, noting that the air modelers had made it clear to these managers precisely why their actions would yield invalid results calculated to overlook pollution emissions in a non-attainment area. “Whether their blatant errors were intentional overlooks the fact that all of their actions worked solely to permit higher pollution discharges than the law allows.”

While PEER will continue to pursue federal intervention and some of the actions highlighted are subject to litigation, this report made no recommendation as to whether or how CDPHE should clean house in its Air Pollution Control Division.


Read the Colorado Special AG report 

Compare the charges by the CDPHE whistleblowers 

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