The Environmental Protection Agency is letting Colorado air pollution officials off the hook for making records available to members of the public who might want to help police corporate rule breaking, two state environmental groups say.
The federal agency had previously held up approval of a key “state implementation plan” detailing how Colorado will stop northern Front Range violations of EPA ozone caps. The EPA in delaying approval had agreed with environmental groups that Colorado should more frequently demand records from polluters and make them easily accessible.
But Colorado pushed back hard, arguing that its proposed system provided “effective and reasonable” access to anyone who wanted it, and that the EPA’s initial demands 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, to stop the demands for expanded open records.
Now it’s likely the environmental groups will have to file their own lawsuit with the 10th Circuit, demanding the EPA’s tougher open-access rule be put back in place.
Coloradans wanting to check up on actual air pollution emissions from oil and gas or other sites will be “getting just the tip of the iceberg,” said Ryan Maher of the Center for Biological Diversity, which along with Public Employees for Environmental Responsibility has been challenging Colorado’s open records rules. “And the EPA and Colorado are saying, well, that’s all the public needs.”
Adding insult to Coloradans, Maher said, is that the EPA reversed its position on the open records rules without consulting any public groups or individuals.
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, Maher said.
The oil and gas company may only need to report once a year that it has the minimum required equipment in place, Maher said. 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, Maher said.
“There’s 14,000 permitted entities out there, and the state is not requesting records on a regular basis,” Maher said.
“We know that we’re not going to get access to a lot of this unless it’s required by the EPA,” he said. “That’s why this situation is especially disheartening, where the EPA initially came out with such strong language in favor of public enforcement, and then just kind of accepted what I view as pretense … superficial explanations.”
The Denver regional office of the EPA said Monday it was still evaluating comments on its proposal to accept new State Implementation Plan details from Colorado, and would respond to groups like Center for Biological Diversity before taking final action. The EPA said that after it had initially rejected parts of Colorado’s state implementation plan for lack of records access, the state “submitted a letter committing to undertake additional steps to improve public access to regulatory compliance information and clarify existing SIP reporting requirements.”
Colorado air pollution control officials said they would not have any comment about the open records dispute.