All posts by Gayla Martinez

Suncor Permits Are Renewed by APCD: How to Commit a Legal Crime

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.

Financial Assurance Hearings at the COGCC – A CRUCIAL STEP

The Financial Assurances rulings coming up in January and February of 2022 represent a crucial crossroads in statewide efforts to require responsible behavior from oil and gas operators. It’s not really too complex. What we are asking of the industry is the same basic life lesson that we all learned as children: if you make a mess, you clean it up! Unfortunately, the draft proposal, provided by COGCC staff to the commissioners, takes this simple idea and twists into a byzantine labyrinth that will provide O&G operators multiple options for gaming the system, leaving clean-up to the tax-payer.

Therefore, we are asking the COGCC to approve regulations that would require full cost bonding on all new wells, all transferred wells, and on all existing wells over a reasonable timeline. Wells on BLM land should be included in all of the above. And bonding should cover both plugging and reclamation costs.


January 20-21
1. Financial Assurance Rulemaking, Docket No. 210600097
1. Staff Presentation
2. Public Comment

January 25-28
1. Party Presentations Financial Assurance Rulemaking, Docket No. 210600097
2. Consent Agenda will be heard on 1/26

February 2-3
1. Party Final Presentations Financial Assurance Rulemaking, Docket No. 210600097
2. Consent Agenda will be heard on 2/2

February 7
1. Commissioner Deliberations Financial Assurance Rulemaking, Docket No. 210600097

February 9
1. Commissioner Comments
2. Public Comment
3. Consent Agenda

February 16 – Evening Hearing, starts at 6pm
1. Commissioner Comments
2. Public Comment

February 23
1. Commissioner Comments
2. Public Comment
(From the COGCC website under Tentative Commission Hearing Agendas.


Sign-up forms for the February meetings are not yet active, but there is plenty of time to begin preparing a statement. Remember, the outcome of this ruling will have significant consequences for Colorado into the foreseeable future. Our current system encourages operators to leave low producing wells sitting in the fields where they continue to emit methane and other toxins into the air. According to a Nov. 26 article in the Colorado Sun, “out of the approximately 52,000 wells on the books at the Colorado Oil and Gas Conservation Commission, 36,930 produce less than the equivalent of 15 barrels of oil a day. Of those, 17,285 produce less than 1 barrel.” These low producing wells amount to 71% of the wells in Colorado. All wells will eventually have to be plugged abandoned. If the operators don’t pay for it, then those costs will be left to the state.

Below is an excerpt from the comment I made in the Nov. 9, 2021 meeting of the COGCC:

I would like to begin by reading a quote from a previous COGCC meeting in which the following statement was made by a commissioner:

“We should not be held hostage to operators who can’t afford to do business in the state. If they can’t discharge their responsibilities to maintain their wells, they shouldn’t be approved to operate here. There should be some element of financial responsibility that’s required.”

I couldn’t agree more.
That meeting took place on March 19, 2018. Three and a half years ago. Three and a half years have gone by, and although SB-181 has given us a new legal framework which was not available to commissioners at that time, we’re still being “held hostage to operators who can’t afford to do business in the state.” Meanwhile, the COGCC continues to approve applications for more wells…and more and more operators — who have no financial incentive to do otherwise — and allow wells that should be properly plugged to spew emissions into the atmosphere. We’re talking about tens of thousands of low-producing wells–with little to no profitability…little to no contribution to energy demand — adding nitrous oxides, methane and other pollutants to the atmosphere…day after day after day.

Three and a half years have passed and we are still being held hostage.
All this within the context of a global climate emergency, in which Colorado plays a significant role. A climate emergency in which we have very little time to make the bold changes that are needed.

I ask that you require full cost bonding—full cost bonding on all new wells, all transferred wells, and on all existing wells over a reasonable timeline—if you will do that, then three and a half years from now we’ll be in a much better place.

Wrapping up 2020…

This week I spent a good deal of time following the proceedings of the AQCC.  After having read most of the GHG Roadmap and the Ozone Reduction SIP (over the course of the last couple of months), I sent in a written comment and also signed up to speak Wednesday night.  There was a good turn out, with statements from numerous elected officials including our own County Commissioner, John Kefalas.  Some comments were general, some focused on specific aspects of the SIP, but overall it was an hour and a half (I left before all the comments had been completed) of unanimous pleas for the commission to tighten regulations and to be more aggressive in reducing emissions.  

The next morning, I rejoined the AQCC zoom meetings to hear the staff response.  I sensed there was some disappointment that the public seems to under-appreciate the work that has been done and the progress that has been made.  A lot of their presentation was spent detailing the legal and procedural constraints that would make it nearly impossible for them to rewrite the SIP at this late date in order to include all of the alternatives that were being demanded, including the proposed early closings of the three coal generators.  There would be several serious consequences to any delay in submitting the SIP to the EPA.
They acknowledged that more needs to be done, and pointed out that there will be opportunities in the future for more revisions.

It was also mentioned that some of the comments received seemed to conflate regulations relating to O&G and those that relate to major sources of emissions that are non-O&G.

Between these two meetings I also had the privilege of participating in an excellent three-night on-line summit hosted by LOGIC. (I know many of you were also in attendance.)  Senator Faith Winter was the keynote speaker Wednesday evening and she gave a fabulous tutorial regarding effective advocacy for climate change.  From her talk and from the information I gleaned listening in to the AQCC, I have the following take-aways:

1)  Not all losses are really losses;  the testimony (both written and oral) given to the AQCC will likely bear fruit down the road.

2)  We have to get into the game early–staff mentioned that there were numerous opportunities for public comment during the summer when there would have been more time to incorporate alternatives; we have to do our homework, build relationships; and join the process early on.

3)  Some of the work must be done legislatively.  The AQCC, and other state agencies have to work within the authority given to them by the law. We need to engage more with state legislators, especially those who have shown an interest in developing related legislation.

4)  Speaking of building relationships, I honestly believe that our state leadership has made a dramatic shift from pre-2018 days. Getting things done in government and politics is a clunky, ungraceful business, but I think most of the state agencies are making a serious effort to address climate change.  They are not moving as fast or as boldly as we need them to, but our encouragement and support will go farther than constant criticism from all sides. Let’s give them credit where credit is due and then assure them that we will have their backs as they push forward. 

One final comment regarding Tom Gonzales.  I don’t know if he was present for Thursday’s vote, but on Wednesday it was mentioned that he was absent due to his responsibilities as Larimer County Health Director.  He has a few other things on his plate right now.

Clean Air Champions

During the December 4 board meeting of the Regional Air Quality Commission, the city of Fort Collins was recognized as one of the first recipients of the commission’s Clean Air Champion award.  The city has taken significant steps to reduce emissions by initiating a program to convert the city fleet to electric vehicles as well as replacing mowing equipment with electric machines. 

It is my hope that some of you reading this blog will take the time to send congratulations to Mayor Troxel and city staff for this effort.  In the climate crisis we are now facing, there is no change too big not to be considered; but, likewise, there is no change too small to go without recognition.  We must have a broad perspective that will allow us to perceive all the interconnecting dots.

A significant connection in regards to the city’s admirable work to shift away from vehicles and equipment using internal combustion engines, is the parallel need for the Platte River Power Authority (PRPA) to prepare for 100% renewable sources of energy by 2030 (possibly by 2028 given the recent proposal of the Air Quality Control Commission to move the retirement date for the Rawhide coal-powered plant up by two years).  As long as the electric vehicles and equipment that the city has purchased run on electricity generated by fossil fuels, whether coal or natural gas, the value of that investment is greatly diminished. 

The city of Fort Collins is gaining a reputation for being a leader in addressing climate change, it is critical that the city’s efforts be supported by equally bold action on the part of the PRPA.