Colorado lawmakers revive plans to better monitor — but not regulate — some toxic air pollutants

A year ago, Colorado lawmakers were moving forward with ambitious legislation to track and regulate new categories of air pollutants from facilities like Commerce City’s Suncor oil refinery when the COVID-19 pandemic struck, forcing them to drastically downsize the proposal. In an abbreviated end to the legislative session in June, they passed only a tiny piece of their original bill, requiring polluters to implement a reverse-911 system to alert nearby residents when potentially hazardous incidents occur.

Now, the bill’s Democratic sponsors are back with what they call the “next step” in addressing a legacy of toxic air pollution that has hit Colorado’s Latino and low-income communities the hardest.

Their latest bill, set to be introduced in the Colorado General Assembly this week, revives some portions of the original 2020 legislation but not others. While it won’t direct state air-quality regulators to develop rules and emissions limits for the air pollutants it targets — benzene, hydrogen cyanide and hydrogen sulfide — it will require facilities like the Suncor refinery to conduct “real-time fenceline monitoring” and share the data with the public.

“This is another step in what is multiple steps to getting to the point where we feel that we are making absolute and quantifiable improvements in the understanding of what, first of all, is coming out of these facilities, so we can share that information with the community,” said Rep. Alex Valdez, a Democrat who represents a north Denver district located just south of the sprawling Suncor facility. “But more importantly, developing long-term studies around the effects on human health so we can back up further legislative action down the road.”

Valdez will co-sponsor the legislation with Rep. Adrienne Benavidez and Sens. Julie Gonzales and Dominick Moreno. The four previously co-sponsored House Bill 20-1265, which was signed into law by Gov. Jared Polis after being significantly pared down last year.

The new bill would require improved monitoring from four facilities, two of which — the Suncor refinery and the Phillips 66 fuel terminal — are located just north of Denver in Commerce City, near communities that are home to high percentages of people of color. Supporters say that curbing toxic air pollution is necessary to address the area’s long history of environmental racism.

“If there was a refinery in the affluent part of town, it would have closed decades ago,” said Valdez.

‘Air toxics’ under scrutiny

In addition to the Suncor refinery and the Phillips 66 terminal, the new bill would apply to a separate fuel terminal operated by Sinclair Trucking in Henderson and Goodrich Carbon Products, an aircraft-parts manufacturer in Pueblo. Environmental advocates say that emissions of “air toxics” by such facilities have long been under-regulated at both the state and national levels.

The Suncor facility, Colorado’s only oil refinery, has come under scrutiny for its emissions of hydrogen cyanide — a highly toxic gas with a history of use as a chemical warfare agent. Because the Environmental Protection Agency hasn’t enacted strict limits on hydrogen cyanide emissions at the federal level, state regulators have allowed Suncor to set its own emissions limit of 12.8 tons per year — which it nonetheless exceeded, leading the Calgary-based company to subsequently request a permit increase to 19.9 tons per year.

Suncor has maintained that the refinery’s emissions of hydrogen cyanide are still far below levels that would pose a threat to human health. But environmental advocates say that researchers and regulators lack the data that would enable them to determine that independently. Suncor based its current hydrogen cyanide limit on a one-time performance test in 2015, according to state documents, and many of the pollutants that would be covered by the new air-toxics legislation are currently subject only to monthly or annual reporting periods.

“There are currently no requirements that facilities measure toxic air emissions in real time,” said Rebecca Curry, an attorney and policy advocate with environmental group Earthjustice. “Critically, this means that we lack the data to understand when there are spikes in toxic pollution when it occurs.”

Curry also said that current air-quality regulations often focus on monitoring direct emissions from obvious sources like smokestacks, when studies show that “fugitive emissions” from other, overlooked sources within large industrial facilities like the Suncor refinery are often much higher. So-called fenceline monitoring aims to measure the actual amount of pollution that may be drifting into nearby areas.

A Suncor representative said the company already conducts fenceline monitoring for benzene, and it announced plans in December to launch a “community air monitoring program” later this year.

“As a provider of the energy that we all need and use in our daily lives, Suncor’s operations do generate emissions and we are committed to making the changes necessary to improve the refinery’s environmental performance and rebuild trust,” Mita Adesanya, a spokesperson for Suncor, said in a statement. “Our goal is to have open and factual discussions to find the right legislative solutions, and we welcome the opportunity to have a seat at the table to be part of this process.”

New emissions limits on hold

As originally introduced in early 2020, HB-1265 would have directed the Colorado Air Quality Control Commission to enact rules relating to air toxics, including “health-based emissions limits” to make up for the lack of EPA standards. Those provisions aren’t included in the new legislation.

“We did have a much more comprehensive bill last year, and we’re just trying to take a piece at a time,” Benavidez said in a virtual press conference on Wednesday. “Setting the health-based standard first requires the data, and we still don’t have that. So with this, we will have the important data that we need.”

A major reason for that approach, Valdez said, is that the Colorado Department of Public Health and Environment lacks the funding and staff resources to address the pollutants in question.

“They don’t have the number of toxicologists and scientists that are necessary to develop protocols around these chemicals,” he said.

Benavidez said that HB-1265’s efforts to improve transparency around emissions incidents at facilities like Suncor have already paid off. The new law requires polluters to send emergency notifications to nearby residents when a pollutant is emitted “at a rate or quantity that exceeds allowable emissions.”

“When we first did this, we thought maybe there’s eight to ten (incidents) a year, because that’s all we heard about,” Benavidez said. “But they’re telling us there could be close to a hundred in a year. And that information will be really helpful to us.”

Lucy Molina, an environmental advocate and Commerce City resident, said that measures like real-time monitoring and the emergency notifications system “would have really been helpful in December 2019,” when a chemical release caused by a Suncor malfunction rained yellow ash on the surrounding area, causing a lockdown at her children’s school.

“I believe this air toxics bill is a start,” Molina said. “It’s totally necessary, and it’s long overdue.”