On February 15, the state approved the permit renewal for the Suncor refinery in Commerce City. Clues as to how they were able to justify this decision can be found in the Responses from APCD to Public Comment regarding Suncor.

The lawyers at the APCD have been busy. Their response to Earthjustice is a 103 page report! I found that a little intimidating (which seems to be part of the game we are playing) so I pulled up the response to Commerce City and quickly scanned through the 16 page document. It is a case book example of how legal complexities can be used to obfuscate moral imperatives and excuse regulatory agencies of all accountability. If I were living in the neighborhoods around Suncor, I would be devastated. For many of those people this permit renewal will prove to be a death sentence.

The APCD states repeatedly that the only purpose of the permit is “to improve compliance by requiring recordkeeping, monitoring, reporting and annual compliance certifications.” The implication being that the APCD has no legal authority to shut down the plant. But then who on earth does?

In 2019, the Permanent People’s Tribunal came to following conclusion in their hearings regarding the fracking industry, “The mega-corporations, more wealthy than many nation-states and seen almost universally…as essential ‘growth machines’ providing ‘development,’ have gained a dominant position vis-à-vis states…In effect, they have established a new form of sovereignty or quasi-sovereignty. They do not derive sovereignty from the people nor do they exercise their power on behalf of the people. Rather they operate, according to law, in the interests of the corporation and its major shareholders. Too often this means they are in conflict with the interests of the citizenry and nature, even of the governments who are beholden to them.” 1

Enforcement is primarily dependent on self-reporting from Suncor with the addition of annual inspections and performance test oversight by the state. Unfortunately, we all know how effective “self-reporting” is, or rather isn’t.

A request by Commerce City for increased transparency in reporting elicited the following patronizing response, “While the Division understands that information regarding the Suncor facility is not always easy to understand, many of the reports have specific requirements for what must be reported and legal documents, such as Compliance Orders on Consent (COCs), cannot always be simplified.”

Although there are plans for fence line monitoring to be installed, the response to other forms of community monitoring was discouraging, “Conducting air monitoring in the community may certainly provide useful information but there is no ability under the Title V permit regulations to include new requirements to conduct community air monitoring.”

And it appears that the primary purpose of the fence line monitoring is limited to providing better communications systems in order to let people know when the chronic exposure to airborne toxins to which they are regularly subjected has unexpectedly increased.

The conclusion of the report states that, “The Division is bound by the permitting requirements in Colorado Regulations. The Division is incorporating comments when it is legally appropriate to do so. Unfortunately, there are no provisions under the Title V permitting regulations that allow the addition of many of Commerce City’s suggestions.”

The translation of this statement is that it is legally appropriate to poison people in and around their homes.

Gayla Maxwell Martinez

1 Ed. Kerns, Thomas A. and Moore, Kathleen Dean (2021). Bearing Witness: The Human Rights Case Against Fracking and Climate Change, p. 141.