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Colorado’s new environmental justice rules disappoint community advocates

The people responsible for cleaning up Colorado’s air applauded themselves this week for creating historic new policies intended to protect residents most vulnerable to pollution, but the people those rules are supposed to benefit say they’re disappointed.

Recommendations from people who represent the Latino, Black, Indigenous and immigrant communities situated near major sources of pollution were ignored by the Colorado Air Quality Control Commission and the state’s Air Pollution Control Division, Patricia Garcia-Nelson of Green Latinos Colorado said Friday.

“I would like the agency to show us where they implemented community feedback because so far we don’t see it,” Garcia-Nelson said. “We have been explicitly clear. I will go as far as to say the agency is lying when they say they are considering our input.”

The Air Quality Control Commission spent the better part of three days this week listening to proposals as it crafted the new environmental justice policies, which were required under a 2021 state law. The commission approved a package Thursday afternoon and then issued a news release saying Colorado was the just second state in the country to adopt such rules.

“Today, the commission responded to calls for action from Colorado communities to do more to address historical injustices and disproportionate burdens of air pollution,” Elise Jones of the Air Quality Control Commission said in the news release. “This new rule enables Colorado to collect more information about air pollution so we can use it to better protect communities and clean air for everyone.”

The new rules will put more stringent air-quality modeling and monitoring in place for specific pollutants in areas of Colorado where people of color and low-income residents live near big polluters.

The Air Quality Control Commission, an eight-member board appointed by the governor, was required to create the rules under the General Assembly’s 2021 Environmental Justice Act, HB21-1266. The law defined what it means to live in a disproportionately impacted community, or a neighborhood close to major pollution sources such as the Suncor Energy refinery in Commerce City.

So far, areas that have been identified by the state as disproportionately impacted communities include Commerce City and north Denver, almost all of Pueblo, neighborhoods in Montrose and Delta on the Western Slope, the lower Arkansas Valley and some areas in the San Luis Valley.

Companies in those areas that apply for new air pollution permits will have to submit environmental justice summaries that cover health data in the communities surrounding their operations. They also will have to undergo modeling by state officials that predicts pollution levels at the businesses.

The commission approved a list of four toxins — benzene, toluene, ethyl benzen and xylene — that will be monitored via machines that take air samples along the borders of those major pollution sources, and it set a fee scale that companies will pay to fund the air-quality monitoring.

But for months, environmentalists — especially those who represent Latino, Black, Indigenous and immigrant communities — asked the state to lengthen the list of toxins that will be monitored and to increase the amount of fees that companies will pay.

They also objected to a provision that allows companies to stop participating in a monitoring program after two years.

“We feel like this rule did not fulfill the intention of the Environmental Justice Act, which was to protect communities that have been historically disproportionately impacted,” Garcia-Nelson said. “We feel like there are so many loopholes in this rule, which doesn’t even go far enough in the first place.”

But the state faced pressure from some local governments and business groups, including the oil and gas industry, who warned that the rules could hurt economic development.

“We are appreciative of the way (the state health department) handled the process, but these additional monitoring and modeling requirements will be yet another hurdle to efficient permitting for all Colorado businesses,” Dan Haley, president and chief executive officer of the Colorado Oil and Gas Association, said in an emailed statement.

The statement also included commitments from the oil and gas association and the American Petroleum Institute to support disproportionately impacted communities across the state. And it praised the state agencies for taking cautious steps in creating the new rules.

“We likewise applaud the commission’s thoughtfulness and nuance on the subject, as it is as complex as it is consequential,” the institute’s Colorado director, Kait Schwartz, said in a statement. “It would be inappropriate for the state not to collect high-quality data and analyze it appropriately before pursuing policies so encompassing, and we were disappointed that some parties in this rulemaking sought to circumvent science in pursuit of radical, politically motivated goals.”

Michael Ogletree, the Air Pollution Control Division director, took exception to criticism that his agency listened to the oil and gas industry and prioritized its concerns over the people who live in the communities. Ogletree said he was more personally involved in this rulemaking process than any other since he was appointed head of the division in late 2021.

“I wanted to make sure we did have very protective rules that not only monitored and did modeling but actually went above and beyond what was required,” he said.

To that end, the new environmental justice rules will require companies that apply for new permits and ask to modify existing ones to install any technologies that help reduce air pollution.

“That wasn’t our idea in the first place,” said Joel Minor, manager of the Colorado Department of Public Health and Environment’s environmental justice program. “It’s what we heard from communities over and over in our engagement. We heard people did want us to reduce pollution.”

Minor pointed out that the business sector also was unhappy about the new rules.

“No party to this rulemaking, including the division, got what we wanted,” he said.

The Air Quality Control Commission will have to revisit the environmental justice rules in three years. But environmental advocates on Friday said they were looking into any legal options that could force the commission to reconsider sooner.

“We’re just very disappointed,” said Guadalupe Solis of Cultivando, an organization in that monitors air quality in Commerce City and north Denver. “I just don’t feel like these outcomes were informed by the populations that are truly impacted. Nor are the outcomes being communicated back to the population it actually impacts.”

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