U.S. Environmental Protection Agency

In a surprise move, Colorado Governor Jared Polis (D-CO) reversed course on a key environmental issue—ground-level ozone—that could have serious repercussions for incoming federal highway dollars and restrict economic development in the Denver metro area.

Last year, former Colorado Governor John Hickenlooper’s administration acknowledged the ozone nonattainment designation, saying the state was “using a combination of rules and non-regulatory measures to cut ozone,” but were actively pursuing ways to argue that the Environmental Protection Agency should exclude out-of-state and foreign pollution from consideration in its designation for the state’s Front Range.

Polis’ March decision changed that calculus.

“Colorado is committed to moving aggressively to protect its citizens by reducing ground level ambient ozone levels. While a significant portion of the high ozone levels impacting Colorado residents result from global background and emissions from outside the state, that fact should not dissuade us from taking reasonable and cost-effective steps to reduce emissions from sources within Colorado,” Garry Kaufman, Division Director of the Air Pollution Control Division at the Colorado Department of Public Health and Environment told Western Wire. “In connection with these efforts we will be looking at all significant sources of ozone precursor emissions in the state including oil and gas production and transportation,” he added.

Denver Has Made Huge Cuts, But Standard Getting More Stringent

The issue at hand is Colorado’s ability to meet federal air regulation requirements. The Denver metro area has struggled for years to meet federal ozone requirements, largely because of geographic considerations and pollution coming into the state from elsewhere. While the state has made huge cuts over the past several decades, the EPA has continually toughened the standard, dropping the ground-level ozone requirement from 75 parts per billion in 2008 to 70 ppb by 2015.

Failure to meet the standard could cost Colorado millions of dollars. Areas that do not meet the standard and are in nonattainment could see federal funding for transportation projects cut as a result of the new designation, as well as tougher permitting processes for manufacturers and other industries must obtain permits for air emissions.

Polis’ decision last week to drop the state’s request for an extension with the EPA to bring areas of non-compliance into attainment pulled the rug out from under a collaborative, decade-long process between CDPHE and EPA encouraged and undertaken by the state’s previous Democratic officeholders. Polis’ immediate predecessor, Hickenlooper, had asked for the one-year extension just last summer.

“This extension would have given Colorado additional time to come into compliance with the health-based standard. Colorado is choosing to move forward without delay to protect communities and their public health,” Polis said last Friday. EPA was expected to approve the extension request.

The battle over ozone comes as the controversial oil and gas bill known as SB 181 heads to the governor’s desk, and the State House considers a climate bill that would cut greenhouse gas emissions of 90 percent of 2005 levels by 2050.

“There’s too much smog in our air, and instead of hiding behind bureaucracy and paperwork that delay action, we are moving forward to make our air cleaner now,” he added.

Polis went on to call ground-level ozone “unacceptable,” saying the state should move “sooner not later.”

“We can’t use pollution from China as an excuse not to improve our air quality here in Colorado,” he added.

A move from the EPA’s classification of “moderate” nonattainment to “serious” nonattainment represents a downgrade with critical impacts across many industries, not just oil and gas. That includes major source permitting levels that drops to 50 tons of volatile organic compounds [VOCs] per year from 100 tons, necessitating currently established permits to be modified. Currently there are approximately 200 Title V permits in the state, but a “serious” designation could bring thousands of facilities under the program, further straining CDHPE regulators who don’t have the resources to re-process existing permits, not to mention thousands of new permits currently entering the regulatory process.

Defend Colorado Argues State Illegally Dismissing Clean Air Rules

In March CDPHE, under Polis’ direction, rejected a petition from Defend Colorado, a self-described organization representing “business and citizen interests” who had asked the agency to pursue an “international contributions” exemption under the Clean Air Act. That includes emissions from China, whose contributions to Colorado’s pollution could account for as many as 5 parts per billion, according to analysts interviewed by the Denver Post. That adjustment would reduce Colorado’s nonattainment threshold and help the state avoid stricter implementation standards.

CDPHE voted unanimously to avoid a hearing based on the group’s lack of legal standing.

EPA spokesman Rich Mylott said, “The EPA is working with CDPHE as they implement and revise their plans to achieve Clean Air Act standards and reduce ground-level ozone along the Front Range. We’re focused on supporting the state as they implement existing air quality programs and identify additional opportunities to reduce emissions,” adding that they were still determining “if that classification will change.”

The Colorado Oil and Gas Association supported the petition from Defend Colorado, arguing that “due to the fact that the large majority of ozone concentrations” were “the result of emissions outside of the state’s control.”

Defend Colorado’s emergency motion for reconsideration or clarification will be heard at 3:30 p.m. Friday at CDPHE headquarters.

Paul Seby, representing Defend Colorado and its request for an April 18 public hearing on “international emissions and exceptional events” called for the Air Quality Commission “decide in favor of public transparency and science” and not bring the federal hammer of regulation down on the state’s businesses and residents. The state has a statutory obligation to provide the “most accurate inventory of air pollution sources possible” and opportunity for public comment. By denying the opportunity for a hearing and not providing a full estimate of air pollution including international emissions, Seby argues, the state is violating the law.

The petition pointed to Colorado’s own comments submitted to EPA from CDPHE for the most recent 2015 National Ambient Air Quality Standards revision, “urging EPA to reconsider the ozone standards for States so as to account for ‘international transport, primarily from Asia’ as a primary factor for Colorado’s elevated ozone levels.”

“Colorado’s comments demonstrated that background ozone levels in Colorado are often close to, or above, the ozone NAAQS, rendering Colorado at a severe disadvantage for attaining ozone NAAQS. Colorado expressly supported the technical evidence and conclusion set forth in the Integrated Science Assessment that the high background ozone levels were not attributable to Colorado-specific anthropogenic sources – citing to ozone measurements of between 65 and 74 ppb at the remote air quality monitoring sites in Colorado with few, if any, anthropogenic contributions,” he wrote.

That means that many readings in the state already approach the new 70 ppb standard, without a single emission from Colorado businesses or residents.

“[T]here is a real and significant impact on Colorado’s [ozone] levels from international transport of emissions . . . which Colorado has no ability to impose controls on,” CDHPE officials wrote in 2015.

In the original petition, Seby outlined the impact a downgraded designation would have on Colorado. “The new 50 tpy [tons per year] threshold would newly subject a significant number of businesses to the burdensome Title V permitting requirements. Recently, CDPHE identified over 600 sources in the Denver Front Range Area that would be subject to more severe Title V permitting requirements if the Denver Front Range Area is designated as a ‘serious’ nonattainment area.”

And while much focus would be placed on oil and gas operations, many other Colorado businesses would fall under the new emissions threshold and be forced to pay considerably more for their permits to be re-worked, the petition argued.

“These ‘sources’ include commercial printing operations, industrial rubber and plastics productions, computer processing and data preparation, hospital facilities, food processors, and a large amount of oil and gas operators. Subjecting these varied Colorado citizens and businesses to burdensome and costly Title V permitting requirements would put them at a disadvantage to comparable businesses in other areas of the State and country,” Seby wrote.

In other words, should the state choose to ignore Clean Air Act exemptions offered by EPA, Colorado would self-inflict “even more stringent requirements” from a ‘serious’ nonattainment designation in the next few years, with restrictions on economic activity, hurting businesses and the economy.

“It is a fiction that Colorado is obligated to accept the Federal straightjacket of a serious nonattainment designation in order to do the right thing,” Seby wrote. “Further, it is also false that a correct and accurate understanding of the contribution of international sources and exceptional events to ozone levels will prevent Colorado from the further regulation of emissions from sources located in Colorado,” he continued. “If Colorado wishes to promulgate more stringent ozone control regulations, it is perfectly free to do so through the public rulemaking process based on the facts and science, and it does not need to hide behind Federal nonattainment designations to accomplish these goals,” Seby concluded.

Colorado’s Democratic Leaders Pushed For Extension, Highlighted State’s ‘Unique Challenges’

But it is not just oil and gas trade groups that have argued ozone nonattainment in Colorado is not the result of anthropogenic sources based in the state. Two of Colorado’s other top Democrats and presidential hopefuls—Hickenlooper and U.S. Sen. Michael Bennet—have expressed deep concerns about the state’s ability to meet one-size-fits-all ozone requirements in recent years. Hickenlooper has already launched his 2020 campaign, and Bennet is widely expected to join him in the ranks of the Democratic field.

Hickenlooper previously emphasized Colorado’s “unique challenges” such as topographical and geographical circumstances—such as the Rocky Mountains trapping overseas emissions, the state’s high altitude, and lightning—that help increase background ozone levels before Coloradans’ contribution.

During Hickenlooper’s Administration, Will Allison, the Colorado Department of Public Health and Environment’s Air Pollution Control Division director, said, “We’re starting out at a higher level [for ozone] than many parts of the country.”

“There are interstate and international issues and we don’t have the ability or obligation to address things that we can’t control, whether it’s Mother Nature or emissions from sources outside the state,” Allison said in late 2015.

A few months later Allison added that ozone levels are “highly variable, it depends on the day and the location.”

“And on any given day the meteorology is different, the winds are different, the photochemicals are different — 30 to 50 percent of the ozone that we’re monitoring is background and beyond our control,” he said.

In 2015 Bennet shared his problems with ignoring emissions from outside the state and Colorado’s difficulty with compliance.

“Because of the pollution that’s come in from other Western states, from across the globe, from wildfires in the West, we have significant parts of our state that would be in non-attainment [unintelligible] from the very beginning of the law. That doesn’t make any sense. That’s not going to work,” he added.

Even after clarifying his support for EPA’s rule, Bennet cautioned that “the agency must make implementation of these rules workable in Colorado by considering ways to account for the sources of ozone that do not originate in the state.”

“We need a rule that is going to work for Colorado and recognizes that a lot of these issues in our air aren’t coming from Colorado, it’s not produced in Colorado,” Bennet told The Hill.

But it wasn’t just Colorado elected officials that saw problems with reaching new ozone standards—the EPA itself projected that metro Denver wouldn’t not be able to comply by 2025. In an agency white paper, the EPA’s modeling showed Denver with levels above 70 parts per billion through the middle of the 2020s.

A one-year delay in implementing the 2015 ozone rulemaking was rescinded in 2017, and Kaufman told Western Wire at the time that while Colorado is “still out of attainment on the old 2008 standard” on background ozone, the state had “made a lot of progress and more progress to be made” on ozone would occur, without an extension to late 2018.

Despite any current or future progress, Kaufman added, “A good portion of the ozone we experience in the Denver Metro and north Front Range area is transported here from out of state or out of the country.” Transported ozone from Mexico and China enters the mountain west, in addition to other sources of background ozone that state regulators and the state’s inhabitants can not control, like exceptional events.

When “[you] get down around 60[ppb], that’s getting to background ozone in the state,” Kaufman said.

“On high ozone days we’re seeing 50 to 65 percent background at the high monitors,” which, as Kaufman says, “doesn’t leave a lot of cushion that we can affect,” including days when APCD has measured background ozone levels that have been much higher.

“Sometimes it’s almost exclusively background [ozone],” he added.

The Denver Post, which argued in an editorial in 2015 that moving the background ozone level too low would go too far if it “fails to account for factors particular to our region.” The regulation of ozone “ought to be conducted in a regulatory framework grounded in realistic goals, and which accounts for ozone that does not originate in the state,” the paper said.

Just this week, Gregg Thomas, director of Denver’s Environmental Quality Division, said that weather plays a large role, as it has this year, in creating days of concern.

“Winter time has always been a high-pollution season in Denver,” Thomas said. Conditions are not worse than they used to be, he added, when fewer people resided in the Denver metro area.

“Our long-term trends of all these pollutants are down anywhere from 20 — in some cases 90 — percent,” Thomas said, pointing to Denver’s air quality as recently as 1990.

A July 2018 EPA annual report on air quality estimated that the emissions of six key pollutants—particulate matter and fine particulate matter, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, and ozone—under the National Ambient Air Quality Standards had dropped 73 percent between 1970 and 2017, the latest year with available data.

Sources of emissions included electric utilities and other industrial sources from stationary fuel combustion, industrial processes (petroleum refineries, dry cleaners), highway vehicles, and non-road mobile sources like construction equipment, aircraft, and other vehicles.

According to the EPA, between 1990 and 2017, ground-level ozone decreased by 22 percent, with sulfur dioxide down 88 percent.