In wake of Suncor settlement, lawmakers double down on toxic emissions

In absence of federal regulations, Denver lawmakers want the state to set health-based limits on certain toxic emissions

health impacts. Elyria-Swansea
Suncor's oil refinery north of Elyria-Swansea on Aug. 9, 2019. The owner reached a $9 million settlement with the state over air quality violations on March 6, 2020. Lawmakers are also considering a bill to regulate toxic gases emitted from the refinery. (Photo by John Herrick)

State air regulators last week reached a $9 million settlement with Suncor, the owner of the oil refinery in Commerce City, for violating the state’s air quality laws dozens of times over the last three years. 

The size of the settlement was historic, air quality regulators said. But for some Democratic lawmakers who live near the refinery, the money is not enough.

“Settlements don’t cure cancer,” said Rep. Alex Valdez, a Democrat from northwest Denver, during a press conference at the state Capitol on Monday. 

Valdez is sponsoring a bill that could eventually require companies like Suncor to set up monitors — known as fenceline monitors — in and around their facilities to measure the concentrations of toxic air pollutants. This information would be reported in real-time and available for public inspection. 

HB-1265 also directs the Air Quality Control Commission to study the health impacts of benzene, hydrogen cyanide, hydrogen sulfide and hydrogen fluoride concentrations in the air to better assess the impact of these chemicals on public health. The results from this assessment then would be used to set “health-based emissions limits,” according to the bill, similar to those adopted in California

The EPA generally regulates emissions of these chemicals from stacks and sets limits based on technical feasibility and cost, aside from benzene, a chemical certain facilities monitor at their fenceline. This emissions data is reported to the EPA annually. 

For years, Suncor has emitted toxic chemicals and other pollutants over nearby north Denver communities, including Elyria-Swansea, a majority Latino neighborhood with some of the highest asthma rates in the county. In December, an “operational upset” at the plant resulted in a plume of orange-brown silica clay settling over portions of Commerce City. The ash was considered non-toxic, according to the state health officials who tested it. But the event galvanized growing public concern, with activists once again calling for the plant to be shut down. Lawmakers began drafting HB-1265 last year. 

The 86-page settlement requires the Calgary-based company to spend $2.6 million on to-be-decided environmental projects in the area, such as home air ventilation systems, another $5 million on plant upgrades to reduce emissions. Much of the rest of the settlement will go to the state in the form of penalties. Ahead of the settlement agreement, Donald Austin, vice president of the refinery, told The Denver Business Journal the company wouldn’t dispute the allegations against it. The company, Austin said, is trying to rebuild trust with the community. 

Despite Suncor’s record of emitting more pollutants than allowed under its state permits, the state is poised to issue the company another air emissions permit that will allow it to continue to emit benzene and tons of toxic hydrogen cyanide and hydrogen sulfide, both of which were once used as chemical weapons. 

Lawmakers hope their bill could help the state better understand the impact of these chemicals on people who live nearby and, potentially, help the state dial down the amount of chemicals the companies like Suncor are allowed to emit. Under current law, it’s almost impossible for the state to deny these permits or set more stringent limits on how much toxic chemicals companies can belch into the air, environmental attorneys say, without facing a lawsuit. 

“We don’t have that authority under state law unless we show that it violates some of these science-based guidelines, thresholds, [or] limits,” said John Putnam, the environmental programs managers with the Department of Public Health and Environment, during last Friday’s press conference announcing the Suncor settlement. “We’ve got to have that strong case of evidence to be able to get to that point. We’re not there at this point.” 

John Putnam, the director for environmental programs for the Colorado Department of Public Health and Environment, speaks to reporters about a settlement with Suncor over air quality violations on March 6, 2020. (Photo by John Herrick)

Advocates like Jeremy Nichols, the climate and energy program director with WildEarth Guardians, want the state to have more authority to dial down or reject emissions permits. Under the Air Pollution Prevention and Control Act, Nichols said, the state has to prove that public health and the environment would be impacted rather than the polluter proving that it won’t be. The law, he said, is “incredibly favorable to polluters” and is a key reason why the state is struggling to meet its air quality challenges. 

Colorado’s northern Front Range has failed federal standards for ozone, a toxic, invisible gas, for the past decade. Emissions from automobiles and oil and gas activity are key drivers of ozone formation. The state isn’t planning to come into compliance with a 2008 federal standard — let alone the more rigorous 2015 standard — until 2023, which is about two years past the federal deadline set under the Clean Air Act. That’s one reason advocates are calling for oil and gas drilling to be banned, which the state argues it cannot do without declaring an environmental emergency. 

Adrienne Benavidez, a Democrat from Commerce City who is sponsoring the toxic emissions bill, told The Colorado Independent she doesn’t want state health regulators to have the authority to simply shut down a refinery like Suncor. 

“I think decisions have to be evidence-based and data-driven. So I would not be in favor of CDPHE just saying that ‘you can’t do it’ or setting an arbitrary [emissions] amount,” Benavidez said. “I think as a government, we owe that to everyone, including businesses.” 

The proposed regulations would only apply to companies that annually emit more than 10,000 pounds of hydrogen cyanide and hydrogen fluoride, 5,000 pounds of hydrogen sulfide, and 1,000 points of benzene. In addition to Suncor, that includes nearly a dozen other facilities in Colorado, including coal-fired power plants and the EVRAZ Rocky Mountain Steel Mill in Pueblo. 

The bill passed the House Energy and Environment Committee by a 7-4 vote on Monday and now heads to House Appropriations.

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