After calling for more accessible public emissions records from Colorado, the EPA abruptly changed course and “proposed to rescind its previous directive that required the State of Colorado to collect and maintain critical air pollution data from the oil and gas industry,” states a Public Employees for Environmental Responsibility (PEER) press release. “A coalition of environmental groups led by [the Center for Biological Diversity (CBD)] and PEER filed a formal objection to the EPA Region 8’s surprising reversal.”
The issue began when the EPA rejected part of Colorado’s state implementation plan (SIP) and called for the state to provide better access to its emissions records.
The data the EPA requested included “pollution exceedances from equipment failures and results from the adoption of Reasonably Available Control technology (RACT),” the PEER press release continues. “This data was to be stored with the state and made available to the public.”
When the EPA initially took a stand on the issue, an August 23, 2023, Colorado Sun article reported, “Until state regulators make it easier to find those records, the EPA says, the federal agency won’t fully approve Colorado’s required plan on how it will attack ozone and other air pollution problems. Colorado had a swift response to the demand for open government. The state sued the EPA to fight more open records.”
In its lawsuit, the state claimed its system provided “effective and reasonable” access and that the EPA’s requirements for Colorado’s SIP “went above and beyond what the agency was requiring of other states. Attorney General Phil Weiser’s office sued the EPA in the 10th U.S. Circuit Court of Appeals, as required by the Clean Air Act [CAA], to stop the demands for expanded open records,” according to an article dated September 10, 2024.
Once the state filed the lawsuit, the EPA began private negotiations with Colorado officials and announced it was placing a hold on its partial disapproval of the Colorado SIP until June 1 to give the state more time to appeal the decision, according to another article dated October 6, 2023.
Now, the EPA has reversed course and is no longer calling for Colorado to make key air pollution data available to the public.
The CAA and SIPs
The CAA governs air emissions from both stationary and mobile sources, as well as provides the EPA with the authority to set and enforce National Ambient Air Quality Standards (NAAQS).
One of the Act’s goals was to set and achieve NAAQS in every state by 1975 to address the public health and welfare risks posed by certain widespread air pollutants. At the same time, states were directed to develop SIPs, applicable to appropriate industrial sources in the state, to achieve these standards. The Act was amended in 1977 and 1990 primarily to set new goals (dates) for achieving NAAQS attainment, as many areas of the country had failed to meet the deadlines.
Colorado’s NAAQS
Once the EPA sets the NAAQS, it identifies which areas of the United States are in compliance and which are exceeding the NAAQS levels. Areas that aren’t in compliance are designated as “nonattainment areas.” Nonattainment areas are further classified as marginal, moderate, serious, severe, or extreme, with dates the areas must come into attainment with the NAAQS by, which, by law, range from 3 to 20 years after designation.
“Every time a nonattainment area fails to attain the ozone NAAQS by its attainment date, and its classification worsens (e.g., it is downgraded from a ‘moderate’ to a ‘serious’ classification), states must seek EPA’s approval for a new SIP submittal that will impose stricter pollution control requirements on the area,” states the CBD’s motion to intervene on behalf of the EPA in the lawsuit the State of Colorado filed against the EPA.
The “EPA has determined that a large part of Colorado has levels of ozone pollution that exceed the ozone NAAQS it promulgated in 2008, rendering this region a chronic nonattainment area called the Denver Metro/North Front Range Nonattainment Area,” the motion adds. “The Denver Metro Nonattainment Area includes eight counties and part of another that, all together, are home to over 3.3 million Coloradans. … Because the Denver Metro Nonattainment Area has been in nonattainment for over 15 years and has failed to meet the 2008 ozone NAAQS by the designated attainment date three different times, EPA downgraded the area from a ‘serious’ to a ‘severe’ classification for the 2008 ozone NAAQS in response to a lawsuit brought by the [CBD] and other environmental and public health groups. … However, Colorado is still working on meeting the SIP requirements for the serious classification. To that end, Colorado provided EPA with the SIP submittal underlying this direct appeal, even though its serious SIP already failed to bring the Denver Metro Nonattainment Area into attainment by the serious attainment date.”
Anytime a regional area is reclassified under the NAAQS, it triggers deadlines for states to resubmit a revised SIP. Each classification level has different requirements under the Act.
Once the EPA reclassified the Denver Metro Nonattainment Area, it triggered CAA deadlines requiring Colorado to make SIP revisions to meet the applicable CAA requirements.
The “EPA proposed to take final action on certain parts of Colorado’s serious SIP submittal on November 9, 2022. … The Proposed Intervenors, in conjunction with several other public health and environmental organizations, submitted comments on this proposed rule to EPA during the public comment period,” the motion continues.
Issues raised during the public comment period included “the defective reporting requirements that prevent public access to air pollution data that EPA disapproved of in the final rule under review,” according to the motion. “Regarding the defective reporting requirements, EPA ‘agree[d] with the commenters’ assertion that EPA cannot fully approve the cited Reg. 7 and Reg. 21 provisions’ because ‘[i]f there is no provision in these regulations for facilities to submit the records to the State on a regular basis, then there is no assurance that the State will receive those records, and hence no assurance that citizens will be able to have access to them.’”
Open records, data collection
The CAA specifically allows three sources to police pollution: the EPA, state regulators, and the public.
“The public can only do it if they have the information about how much the polluter is putting out, so they can compare it to how much pollution they’re allowed,” CBD Attorney Robert Ukeiley said in the October 2023 Colorado Sun article. “Without that information we Coloradans and others can’t protect themselves and their families and their property from illegal levels of pollution.”
According to CBD Attorney Ryan Maher, there’s a big gap in reported data and the data that’s made available to the public. “The gap of information available to the public comes frequently in flaring operations at oil and gas production sites, with rules requiring that the producer have burning devices that remove 95% of methane and volatile organic compound emissions created as an extraction byproduct,” he said in the September 2024 Colorado Sun article. “The oil and gas company may only need to report once a year that it has the minimum required equipment in place. But those reports don’t say how often the flaring equipment is offline due to malfunction or maintenance, or whether it’s truly burning up 95% of pollution. Unless state inspectors demand those records and put it online in a way the public can access, enforcement lags.
“There’s 14,000 permitted entities out there, and the state is not requesting records on a regular basis.”
To be enforceable, a CAA SIP must be “legally and practically enforceable,” according to the EPA.
“We find that a requirement to provide records to the state only on request, without any required periodic reporting to the state, is inconsistent with CAA and regulatory requirements for enforceability,” stated the EPA’s July 10, 2023, answer to the Colorado SIP submission.
In August 2023, Colorado Attorney General Phil Weiser told the Colorado Sun that Colorado officials “believe there is adequate public access to all permits and company reports, and that making access easier would divert state money and staff time from actually fighting pollution.”
The EPA has “repeatedly” held that for state pollution-fighting plans to be practically enforceable, people “must have reasonable access to the records allowing enforcement,” according to the agency’s official response to public comments on the plan.
The current system requires the companies holding an air pollution permit to keep the records and make them available to the state “upon request,” according to the EPA’s decision published in the Federal Register. But states might not do that, the EPA said in its May ruling. “This undermines citizens’ ability to participate in the enforcement” of clean air rules.
The EPA’s demand that the state be the “aggregator or collector, just in case anyone wants it, adds what is an unnecessary cost and burdensome step, that will divert valuable state resources to an area that’s just not worth it,” Weiser said.
Since the dispute over its SIP began, Colorado has introduced a new database that’s designed to better organize and present environmental data.
“However, this development has been met with skepticism, as the new software merely reshuffles existing information without revealing any additional insights,” states the PEER press release. “This move has been seen as a superficial attempt to address transparency concerns without making meaningful changes to improve public access to the specific critical environmental data required for enforcement.”
But Ukeiley notes in the August 2023 Colorado Sun article that it isn’t that difficult to set up an e-mail address to receive these reports.
“Various divisions of the state health department already have publicly accessible online ‘drawers’ of documents searchable by permit number or location, collecting mandatory reports, enforcement actions and other correspondence. So, the resource burden on the state is pretty darn minimal,” Ukeiley said. “The attorney general’s office is spending hundreds of times more taxpayer money on suing the EPA than it would cost to agree with the EPA that more transparency from polluters is a good thing and give the public access.”
The public can’t monitor air pollution and hold polluters accountable without access to data.
Maher believes that, “[i]n an era where environmental accountability should be at the forefront, this decision is a step backward,” he noted in the PEER press release. “The public has a right to know what’s in the air they breathe. By reversing this decision, the EPA is not only weakening the [CAA] but also eroding the public’s trust in the agency’s ability to protect our communities from harmful pollution. The EPA has done so without even consulting with the public, just state officials, who often end up on the industry side of lawsuits brought by the public.”
Next steps
In the aftermath of the EPA’s position reversal, environmental groups are encouraging the public to act by urging the EPA to reconsider.
“The Denver regional office of the EPA said Monday it was still evaluating comments on its proposal to accept new [SIP] details from Colorado and would respond to groups like [the CBD] before taking final action,” according to the Colorado Sun’s September 2024 article. “Colorado air pollution control officials said they would not have any comment about the open records dispute.”
If the EPA’s position doesn’t change, environmental groups will likely file suit against the Agency to force it to require better data reporting and availability in Colorado.