The second air quality webinar co-sponsored by the Larimer Alliance and Colorado Rising, held June 15, from 6pm to 8pm, did not fail to meet expectations; rather, it soared to new heights, building on the first webinar held March 16 . The following are my comments on the significance of the event, some context to help understand why it came about, and what still needs to happen to fix our air quality problem here in the Front Range. Please feel free to make comments below, especially if you have questions.
A superlative cast of three presenters and six panelists dove deep into the tangle of regulatory and legislative issues that have confounded so much of public discussion for the past few years. The three presenters — Andrew Klooster of Earthworks, Christiaan Van Woudenberg, past trustee with the town of Erie, and Mike Foote, environmental attorney and former legislator — were highly qualified to speak to reasons why there has not been more progress made on enforcing regulations around air quality. Six more panelists participated in the Q&A session afterwards — retired environmental attorney John McDonagh and Ed Behan with the Larimer Alliance, Sandra Duggan and Caitt Brown with Colorado Rising, Detlev Helmig of BoulderAIR, and Broomfield City Council Member Laurie Anderson — who are all also intimately familiar with the twists and turns of how this complex issue has unfolded, and the nuances of why the regulations have been difficult to understand, much less implement.
Titled “What’s In Our Air and What Can We Do” the full recording can be viewed here ( click on ‘Watch on YouTube’ in lower left):
JUST WHAT IS THE PROBLEM?
What is abundantly clear is that 1) the air quality in the Front Range from Denver to Fort Collins has severe ozone problems, and 2) the state regulatory agencies charged with cleaning it up are failing woefully at doing so; so much so, that there is widespread lack of confidence that these agencies can fix their own problems, and will need outside help from the legislature to take curative action.
So, what can we — as in our local city and country governments, as well as the activist community — do about it? That is exactly what this webinar was about, and what this article seeks to explain.
For starters, there are five municipalities that taken the bull by the horns and bought the best technology that money can buy to measure their air quality, and start to build the science-based data that will prove what is causing their ozone pollution, as well as many other pollutants. Frankly, after years of inaction after fracking started to take off in Colorado around 2010, communities realized they would just need to solve their problems themselves, and not look to the state. So what if the state agencies don’t want to help local communities monitor their pollution? Fine! we’ll do it ourselves….but first we need some background.
SOME BACKGROUND: IS THERE SOMETHING ROTTEN IN DENMARK?
So here is where we get into the nitty-gritty of how our air quality is managed by the government agencies involved…which is a mix of federal, state and even local county and city issues. So — it’s complicated! But that’s why I’m writing this blog article…let’s dive in:
The primary agency responsible for monitoring and regulating air quality in Colorado is the Air Pollution Control Division (APCD), which is located within the Colorado Department of Public Health and the Environment (CDPHE). Air quality regulations originate at the federal level, with the Environmental Protection Agency (EPA); but the implementation of these federal guidelines is implemented solely by the APCD. There are no local agencies (at the city or county level) that are mandated by the EPA; but there is nothing preventing local agencies from measuring their own air quality, if they wish to do so.
The Front Range, roughly from Denver to Fort Collins, has been out of compliance with EPA standards for “safe” levels of surface level ozone since 2004; the technical word is “non-attainment”, and there are levels of non-attainment. Since 2004, the Front Range was designated as “serious.” (For more information on EPA’s ozone classifications, see here.) Environmental groups and local governments have been urging the APCD for years to be more transparent about their programs for monitoring air quality, and enforcing compliance upon polluters, to little avail. The fact that so little progress has been made with getting the APCD to be more transparent about why we live in an “EPA non-attainment area” over nearly a twenty year period speaks for itself. (Non-attainment means we have not attained safe levels of ozone, according to EPA measurement methodology; which is implemented by the APCD.)
Confirming what many in the environmental community had suspected for years, the EPA announced in late 2019 that it was reclassifying the status of the ozone non-attainment in the Front Range from “serious” to “severe”. The news release of the official EPA announcement on December 19, 2019 can be read here.
Here is a map showing the affected area, which includes the southern half of Larimer County:
The EPA website has a wealth of information about ozone, including details about the SIPs (State Implementation Plans) for the Front Range on their website at www.epa.gov/ground-level-ozone-pollution
THINGS COME TO A HEAD
A dramatic whistleblower event in March 2021 created a pall of suspicion over the APCD which has never been satisfactorily resolved; this newspaper article describes what happened: Colorado air pollution control managers ordered staff to falsify data and approve permits “at all costs,” whistleblowers say, Colorado Sun, March 30,2021)
Basically, three APCD employees who worked in the modeling section of the APCD filed a lawsuit with the EPA, stating that their supervisor, Gary Kaufman, had been ordering them for some time to alter the results of their models to allow polluting companies to continue operating — which they believed was a violation of the law.
This certainly blew the lid off the issue, because within the next month the Colorado Attorneys General office launched an investigation following that announcement. (Colorado attorney general launches probe of whistleblowers’ air-pollution control complaints, Colorado Sun, April 26,2021). The AG office was required to hire a third party attorney firm, since it cannot investigate the state government itself, as they are the attorney for the state.
The full report of that investigation can be read here: “Report from the independent investigation of the state Air Pollution Control Division released”, September 24, 2021. Unfortunately, most of the suspicious actions are described in obscure legalese, minimizing the seriousness of the charges brought by the plaintiffs, and providing enough legal wiggle room to avoid any indictments of any individual at the APCD. The light tone of this investigation’s report, and the lack of any strong reaction to correct what are clearly serious charges, was puzzling to me at the time I first read it.
It was not until I was made aware of another take on this third party investigation that it started to make sense. This is Phil Doe’s biting commentary on the whole affair: In Colorado Just Another Environmental Whitewash for the Polis Administration, published in CounterPunch.org, October 15, 2021. The indomitable Mr. Doe always gets right to the point: the third party law firm hired by the AG’s office was not the best of choices. For one, they are located in Atlanta, and second, they are known as being one of the top law firms in the country for defending corporations accused of breaking environmental laws. This does not reflect well on the choice by the AG’s office, since there are two fine law schools in Colorado, and many retired judges, who would have known Colorado’s situation much better, and made for a more thorough investigation. In the end, as Mr. Doe concludes, this all seems to be more about political survival than implementing environmental law. The final ironic twist was that, far from being sanctioned for his behavior, Mr Kaufman has been given a new position as Deputy Director for Regulatory Affairs in the APCD. Is there no justice?
I note with a raised eyebrow that Mr Kaufman was recently employed for a couple of years at Holland & Hart, one of the largest law firms in Denver representing the O&G and mining industry, but that he worked at the APCD for some 11 years before that, as shown on his LinkedIn page. Do we see a revolving door here? This would seem to indicate a pattern of regulatory capture and obvious conflict of interest. Indeed, the third party report mentioned such a conflict with regards to Mr. Kaufman. He had been a lawyer working for Newmont Mining before coming to the APCD, where he became involved in the issuing of air quality permits for them. When outside parties pointed out this conflict of interest, Kaufman was removed from reviewing Newmont’s permit in his new position at the APCD.
In the end, the charges brought by the whistleblowers have not been adequately addressed, which should be a matter of some concern for our legislators wanting to help with this situation.
FRONT RANGE CITIES TAKE THE BULL BY THE HORNS
What all this might indicate is the need for changes in the APCD office coming directly from the legislature in the form of revised legislation, to directly and openly address the issue. This was exactly the purpose of the webinar, and that is the focus of this article, and the political goal of the Larimer Alliance and Colorado Rising: to build political pressure on the 2023 legislative session to pass legislation that addresses our air quality problems. The existing BoulderAIR monitoring stations that have been built can serve as powerful evidence to push such legislation forward. In other words, these Front Range communities are taking the legislative bull by the horns with their undeniable scientific data, collected over the past five years, and are in a position to use this data to force change on the APCD, the CDPHE and the COGCC — driven by true grassroots organization in the Front Range since 2015.
One of the first issues to be addressed which could open up this discussion could be why the APCD does not consider the data collected by BoulderAIR stations to be valid. This is addressed later in this article, when Mike Foote speaks to exactly this point. But for now, I want to continue to describe the context within which the presenters speak during the webinar recording.
Boulder, Erie, Broomfield, Longmont and Commerce City have each contracted with BoulderAIR to install continuous, real-time air quality monitoring stations with their own funds. Boulder was the first, starting in 2015 at Boulder Reservoir, followed by Longmont, Erie, Broomfield and Commerce City, over several years following. In Commerce City, the funding is from the Cultivando Project, which received partial funding from a settlement with the Suncor refinery there. Cultivando has applied for funding to keep the monitoring project going in future years.
The near-real-time data is published on the Boulder AIR website, bouldair.com, within 15 minutes of it being picked up by the sensors. (Each monitor has a wireless Internet connection which uploads the data continuously.) This is a powerful body of evidence that is of such quality that it has been published in peer-reviewed journal articles, and is, significantly, legally defensible in court. Though costly — depending on the number of measured pollutants, a fixed station and the monitoring equipment costs about $250,000 to a half million dollars to acquire and to run for the first year, and about half of that per year in the following years — the city leaders in those communities have deemed it a worthwhile investment. No other air sampling technology even comes close to the quality of the data from this technology.
There are two state-maintained CDPHE ozone monitors in Fort Collins: one on the CSU campus, and the other is located on the extension campus at the end of LaPorte Road. Unfortunately, the data produced by these monitors doesn’t seem readily available; I cannot find them on the APCD website. Nonetheless, I have heard they have detected some of the highest ozone readings in the state. This should come as no surprise, considering the 20,000 plus active O&G wells in Weld County and the prevailing winds that blow from east to west. This means the ozone-ladened air from Weld County gets blown over to Larimer County, and then backed up against the Front Range mountains. This basic meteorology has been extensively modeled and proven.
These existing CDPHE monitors detect ozone only after it is created; but they cannot detect the precursors of ozone. Currently, only BoulderAIR monitors can detect speciated ozone precursor chemicals continuously in real-time — in effect, allowing us to say definitively what percentage of our ozone is coming from ICE vehicles versus O&G operations over time.
HOW CAN WE TELL WHERE THE POLLUTANTS ARE COMING FROM?
Although a Boulder AIR monitoring station stays in one spot, the prevailing winds could come from any direction. How can one stationary monitor deal with shifting winds? Through wind data, of course. This is one of the many essential functions of NOAA, the National Oceanic and Atmospheric Agency, performs for us, 24×7, 356 days a year; just take a look at their Wind Map, an amazing feat of scientific measurement and technical engineering. By combining such wind vector data with its own readings of wind direction and velocity, the pollution measurements at the stationary monitor can effectively “see” what direction the wind came from, and therefore infer from what direction the pollutants came.
The results of such wind vector modeling can make for a much more convincing visual graphic than just reading numbers on a page; here is an example of the measurement of ethane at the Boulder Reservoir station showing the direction and intensity of where the ethane came from at some instant in time:
It is also possible to make animated visualizations of such data, graphically illustrating how the air pollutants are changing in real time. This could become really interesting in the event of a mass pollution release as a result of a field accident — which has happened in the past.
ANDREW KLOOSTER CONFRONTS THE APCD
Moving on to the webinar itself, the discussion makes clear that all the best data in the world will not amount to a hill of beans if the regulatory agencies charged with implementing the law are not listening — and as was discussed above, this is certainly a big part of the problem.
First to present was Andrew Klooster, a professional videographer with Earthworks, a national environmental activist organization. They provide him with state-of-the-art OGI (optical gas imaging) cameras, which Mr. Klooster uses to make intense videos of otherwise invisible vapors spewing out of O&G operations in northern Colorado for the last several years. In effect, they show how much the O&G industry lies about its compliance, and brings many angry citizens to a frothing rage at the images of all that methane and VOCs polluting their air.
This might explain why his presentation itself was so especially focused and intense: he wanted to move the audience to action, and do what they can do: file complaints about their experiences with O&G operations — whether from odors, water pollution, traffic noise, vibrations from seismic exploration, etc. — directly with the COGCC and/or the APCD. He provided information on where to file your complaint and why: to put additional scrutiny on the operator, and build a body of evidence.
Those two URLs are:
The CDPHE: https://cdphe.colorado.gov/health/oil-and-gas-and-your-health
The COGCC: https://cogcc.state.co.us/complaints.html#/complaints
If you live in proximity to active O&G operations and feel that you are impacted, you should file a complaint at the above two websites. To advise you on how to do that, please watch Mr. Klooster’s presentation: he walks through the process, and where to pay attention to detail, and how to file a more effective complaint. Mr. Klooster was very emphatic on this point: filing complaints helps! You should not expect a direct response, but know that your testimony will help build a case. I’m sure there must be a way for checking on your filing, but that was not covered in the presentation.
The rest of Mr Klooster’s presentation contained compelling images and videos from OGI images that he personally recorded.
CHRISTIAAN VAN WOUDENBERG RISES TO THE CHALLENGE
Christiaan Van Woudenberg has lived in Erie with his family and young children for over ten years; so he has been around through the whole fracking issue there. (I should note that Erie is rather unusual because the Boulder/Weld county line runs smack dab through the middle of the town; so, talk about a night and day situation with fracking! ) As a concerned citizen he became more and more concerned to do something about the problem — enough to run for election to the Board of Trustee’s in 2018, and reelection in 2022. However, due to other commitments he has taken on, such as head of the Erie Protectors, he had to resign from Erie’s Board of Trustees.
With a background in biology and software development, Mr Van Woudenberg went beyond the call of duty by taking the initiative of helping to develop a new mobile app to empower local citizens with regards to air quality. The app will make use of data collected by BoulderAIR monitors, and has received funding for its development through to completion. He walked the audience through an overview of the app in a dispassionate delivery — though the successful implication of such an app could have electrifying results. If anybody with a phone was able to not only check their air quality in real time, but also report what they might be seeing, smelling or otherwise experiencing, this could result in a politically powerful body of evidence that would be hard for regulators to ignore. The app is scheduled for launch around fall of 2022.
What the app amounts to is a grass-roots, citizen initiative forced to do what the state regulators at the CDPHE & APCD have refused to do: collect the scientific data that proves where this ozone pollution is coming from with undeniable strength and clarity. As such, it has the potential to set a world-class example of citizens overcoming the entrenched apathy created by decades of regulatory agencies who operated at the direction of the O&G industry that was politically all-powerful until 2019.
MIKE FOOTE BOOTS IT THROUGH THE GOAL POSTS
The final presenter to speak was Mr. Mike Foote, well known to many of us for his being a primary author of the famous bill, SB-181, and having appeared to speak at many public functions since then. We could not have had a more authoritative voice advising us on what we can do.
What many might not realize about SB-181, is that it was the tenth bill that he had run during his eight years in the state legislature; eight of them failed to pass, but the last two did, one of which was SB-181. (Thank you, Mr. Foote!) You might say he had a lot of practice before he finally kicked the field goal that made it through the uprights! One can only imagine the amount of patience and perseverance that it took to accomplish this. (Totally a personal aside: I was at the capitol on that historic occasion, March 5, 2019, when Erin Martinez testified before a subcommittee and Mike Foote gave a very well attended press conference on the passage of the bill, which I recorded in the a Facebook post, and was noted in this Colorado Sun article. )
The hopeful tone that Mr Foote sounded was that the law can always be changed, and the large bureaucracies like the CDPHE/APCD are “risk averse” (an underwhelming observation, but correct). He gave encouraging support to codifying the Precautionary Principle, which would shift the burden of proof to industry before engaging in business activities that can harm the environment or people. (To read more about the Precautionary Principle, see its wikipedia article.)
He noted that the APCD has added some new personnel during the current administration, and that they should have the resources to deal with new roles. A role for interacting with local communities could be created within the CDPHE/APCD. This will require persistence, he said. It takes early scheduling, even a steady presence, and an ongoing relationship with legislators, to have a chance of being heard. If you wait until March to contact them, it’s too late. In June, they are on vacation, burned out from the intense legislative sessions. July and August are the calm time of year to contact them. In September and October they are blocking out their own legislative agenda. Forget about anything getting done over the winter holidays. Excellent advice for how to lobby your representatives!
WHAT ABOUT THE Q&A?
The six panelists then joined the three presenters to answer questions asked by the zoom audience. I describe below what interested me, but you should watch the discussion to see what interests you. The questions were submitted anonymously, and were read aloud by moderator Sandra Duggan of Colorado Rising.
Mike Foote took the first question about why can’t Colorado just ban fracking statewide like New York? The short answer is that the politics are quite different here, and the O&G industry has much more political power; Mike never considered a statewide ban to be politically possible.
One question (which sounded like a plea for help) asked if there was any hope of the air quality getting better anytime soon, because they were thinking of moving away? The panelists made a worthy effort of being cautiously optimistic. Laurie Andersen reeled off a string of statistics indicating improvements, Dr Helmig gave a scientific, if roundabout answer, Mr Foote too tried to sound a note of optimism; and then John McDonaugh of the Larimer Alliance jumped in with an historical perspective. He said he’d been involved in environmental litigation since 1982, back when it looked really, really dark against the momentous industries involved; but we must ‘keep fighting the good fight’ for future generations, he strongly advised, and pointed to much progress in air and water pollution, as compared to what used to exist in previous decades.
Christiaan affirmed a beta version of the new mobile app should be ready by ‘Q3’ (that’s third quarter, or July-Sept timeframe). He also panned the PurpleAir app and monitors, which he described as next to useless. Dr Helmig confirmed the lack of scientific accuracy of PurpleAir monitors, which in his experience “caused more harm than good,” by giving off false signals. Sandra asked about the effectiveness of home filters? Dr Helmig said they might be effective, depending on circumstances, as they require good maintenance; but a definite thing to avoid is the use of natural gas in the home.
Of real interest to me is what will it take to get a BoulderAIR station in Larimer County? Laurie Anderson answered that one, saying it was a long slow permitting process in Broomfield, but new stations can learn from their experience. (Take note, Larimer Alliance!). Noted that she said it is costly, at about $1 million per year to cover several monitoring stations, including some Ajax canisters obtained from CSU, to get good quality data; however, Broomfield was able to get part of that paid for by Extraction O&G. (Getting industry to finance paying for part of the cost of monitoring is a prominent goal in Larimer County.)
Dr Helmig confirmed that with any additional station there is an added accuracy in the ability of the overall network to pinpoint where prevailing pollution sources lie, and to help identify the short spikes of higher emissions, which can be quite transient, like just for 10 minutes, before it goes away. Only continuous monitoring can capture this; averages, or ‘snapshots’, (such as the Ajax canisters) cannot possibly measure them.
One question directly asked what doesn’t the CDPHE/APCD acknowledge and use BoulderAIR data? Andrew Klooster confirmed this; and they don’t consider any OGI video taken by anyone other than state staff to be valid evidence. This is wrong, and needs to be corrected. Mike Foote agreed: in other areas of the law, it does not take a police officer to be present for a crime to be reported. Allowing community input was a major purpose of SB-181. Andrew and Laurie affirmed this; in the Air Toxics bill that was passed this past session, there was language added to allow BoulderAIR data to be used. This could be significant, as it could be the first legal acknowledgement of the validity of data collected by such monitors. Christiaan informed everyone that the quality of Andrew’s OGI cameras is far better than anything the state has.
Mike addressed the local control issue. It was firmly established that the state regs were the floor, but that any local community could implement a higher level. Ed Behan asked if that applies to existing facilities? Mike answered affirmatively. John jumped in and affirmed that all local cities and counties have equal power as the COGCC to pass their own laws; Mike affirmed this is the case for surface impacts, but ‘downhole activities’ are still regulated by the COGCC.
Then a question about enforcement of air quality regs: is a ‘cleanup bill’ necessary? John answered that Larimer County has adopted new, detailed regs; but their enforcement been quite lacking for pre-existing facilities, making the regulations “a dead letter.” In this case, any clean-up regulation won’t solve the problem unless the lack of enforcement problem is solved. He said no explanation has been forthcoming from any Larimer County officials on the matter.
A final question asked can BoulderAIR distinguish between vehicles and O&G precursors that cause ozone? Yes, definitely, answered Dr Helmig.
In conclusion, what do I think the webinar accomplished? Well, that will have to be seen, in how many people watch it, weigh what was discussed and then act on the information. But without a doubt I believed it showed that:
– there is broad agreement among the activist community that we a serious ozone pollution problem, especially in the summer, from Denver to Fort Collins in particular. The EPA reclassification in 2019 confirms this.
– that a number of elected officials agree with this, but by no means all, and that this alignment is often falling along party lines
– that SB-181 did not adequately address the issue of air pollution, and how enforcing sanctions against air pollution violations by the O&G industry are difficult at best, non-existent at worst, because this type of enforcement action straddles two agencies, the COGCC and the APCD. They have never had to work together on such cases until SB-181 realigned their priorities, such that now they must work together, but are ill-prepared to do so.
– that further legislative work needs to be done that addresses this particular issue, where it would make sense for staff from both agencies be embedded as legislative aides to help to work out the language and intent of such legislation.
– that such legislation must be developed long prior to the legislative session start in January if it is to have any hope of being passed.
– that the air quality app being developed the Erie Protectors and Mr Van Woudenberg is being eagerly awaited!
Let’s hope the webinar will be viewed by many, particularly our elected representatives, and that it will generate much positive discussion! Please feel free to make comments below, especially if you have questions. The Larimer Alliance and Colorado Rising are hoping to raise public awareness and focus on this serious environmental issue, and how we need to improve the regulations, and the enforcement of those regulations.