On July 8, 2024, the EPA announced it issued a Notice of Violation (NOV) to Suncor Energy (U.S.A.) Inc., alleging the Commerce City refinery failed to comply with air emissions laws. The NOV was issued in partnership with the Colorado Department of Public Health and Environment (CDPHE).
The agencies allege Suncor violated or is violating the Clean Air Act (CAA) and the Colorado Air Pollution Prevention and Control Act through improper emissions of hazardous air pollutants like benzene. The joint NOV is a result of recent air inspections and other investigations by both agencies into Suncor’s operations.
A public version of the NOV was released with redactions to protect company-claimed confidential business information (CBI).
“EPA remains unyielding in its efforts to ensure the Suncor refinery complies with laws and regulations that protect human health and the environment,” said EPA Regional Administrator KC Becker in an Agency news release. “Working with the state, we will continue to investigate these alleged violations and pursue all opportunities to improve conditions for the residents of North Denver, Commerce City and nearby communities.”
The NOV follows an October 2023 CAA inspection at Suncor that was led by the EPA and accompanied by the CDPHE and incorporates the CDPHE’s June 2023 Compliance Advisory against Suncor. The agencies allege violations of:
- The CAA’s standards for benzene waste and other hazardous air pollutants
- CAA performance standards and Title V permitting rules
- The Colorado Air Pollution Prevention and Control Act and Colorado Air Quality Control Commission regulations
- Suncor’s Title V operating permits issued by the CDPHE under the CAA
“We’re grateful for EPA’s partnership in this enforcement action, and we’re confident it will build upon our recent actions and improve the refinery’s operations,” said CDPHE Executive Director Jill Hunsaker-Ryan in the EPA news release. “Through a comprehensive approach, we continue exploring all options to ensure Suncor complies with air quality requirements. This new joint enforcement action underscores our shared commitment with EPA to provide the communities near Suncor with the enhanced protections they deserve.”
NOV process
The NOV is the first step in a joint federal-state enforcement process and notifies Suncor that both agencies are investigating the alleged violations. This notice offers Suncor an opportunity to discuss the violations. The EPA and the CDPHE will consider all appropriate information to determine the final enforcement response.
Just because a company receives an NOV doesn’t necessarily mean it will be assessed a penalty.
“The EPA uses NOVs to inform companies of suspected environmental violations and their implications, and responding effectively to an NOV is often a company’s last opportunity to avoid prosecution for environmental crimes,” advises Oberheiden P.C. “With this in mind, if your company has received [an NOV] from the EPA, an informed and strategic response is required. Even though an NOV is not itself legally binding or representative of an EPA enforcement proceeding, ignoring an NOV is highly likely to lead to further action by both the EPA and the U.S. Department of Justice (DOJ).”
NOVs contain important insights into the specific focus of the EPA investigation.
“Most NOVs close with a section titled, Enforcement, that states the EPA’s intent to continue pursuing its investigation and its authority to share its findings with the DOJ,” Oberheiden says. “Here, the EPA may also list the penalties that would be on the table in the event of criminal prosecution. The Enforcement section of an NOV also typically includes an express invitation for the recipient to confer with EPA and provides the relevant individual’s contact information.”
At this point, many companies retain outside legal counsel experienced in working with EPA-alleged violations. When an NOV is received, according to Oberheiden, important legal steps include:
- Critically assessing the EPA’s interpretation of the relevant laws and regulations
- Carefully reviewing the EPA’s determination of the relevant facts and circumstances
- Evaluating potential defenses and formulating a strategy for disputing the EPA’s allegations and/or targeting a favorable settlement
- Communicating with the appropriate EPA personnel, which can include entering into settlement negotiations