Air Toxics Rule 30 Permitting Rulemaking - PSR Colorado Comments

Dear Members of the Air Pollution Control Division and Air Quality Control Commission,

PSR Colorado (Physicians for Social Responsibility) is an organization of health professionals and allies committed to protecting present and future generations from the negative health impacts of toxic chemicals. We provide education and advocacy based on scientific evidence.

We are pleased to submit our comments on the AQCC Draft Permitting Program Needs Assessment regarding Air Toxics Rule 30. 

We echo the concerns and comments presented in HAWC public comment on Reg 30.pdf regarding health-based standards. Given the strong epidemiological research indicating many health impacts from proximity to and density of oil and gas operations, we strongly concur with HAWC’s recommendation that more recently updated values for benzene be used as a benchmark, such as those of the CalEPA. 

For years the ECMC (formerly COGCC), AQCC and other state agencies have failed to design a framework that adequately accounts for cumulative impacts. We understand a cumulative impact assessment as one that accounts for the total pollution burden from all sources. We support the inclusion of other environmental factors as per the Environmental Equity and Cumulative Impact Analysis (EECIA).  

We note that the OAC Toxic Air Contaminant Priority List includes hundreds of chemicals making it possible to create a comprehensive hazard assessment. The Colorado Air Toxics Permitting Program Needs Assessment (Needs Assessment) makes reference to the potential additions to the priority chemicals list.  This would seem essential. To adequately protect public health, state agencies must establish a clear plan to integrate air toxics outside of the five PTACS into a single hazard index. 

We believe that trust, oversight, credibility and transparency are essential to the success of this program. 

Transparency and oversight of chemical exposures has been lacking leading to distrust of the regulatory system. PSR Colorado, PSR National, Fractracker and Sierra Club have been engaged in investigating compliance with the mandatory reporting of secret chemicals used in downhole operations. Their report, Oil & Gas Chemicals Still Secret in Colorado, found a lack of reporting on the part of operators and enforcement on the part of the ECMC. Although the ECMC is now addressing this issue, to our knowledge no fines have been collected from operators that are out of compliance at a time when financial resources are direly needed. How will this problem of noncompliance and financial penalties be addressed through the Needs Assessment plan?

The proposed plan calls upon facilities themselves to input information and conduct risk assessments. This should be done by a team of unbiased outside contractors with the skills and knowledge to assure accuracy at the Tier 2 Risk Assessment level. 

We recommend fully incorporating community input, along with input from professionals from the scientific and health community, into the choice of outside experts to conduct and verify risk assessment when a potential health risk is indicated, rather than relying solely on industry-selected experts. As an example, a recent Cumulative Human Health Risk Assessment of Regional Ozone and Volatile Organic Compounds from Unconventional Oil and Gas Sites in Colorado’s Front Range found higher risks to health than a study conducted by a contractor hired by the oil and gas industry. 

We have concerns regarding the development of an annual emission report to be shared with the public. The Informational Gaps in Reporting of Toxic Air Contaminants in Colorado report showed inconsistency in reporting levels leading to “widely different estimates of TAC emissions”, inconsistency in reporting frequency, and inconsistency in reporting granularity. What steps will be taken to avoid this problem in this PTAC air toxics program? 

With regard to the scope of the Needs Assessment we believe it falls short of the intent of HB22-1244.

The Needs Assessment states that the commission must determine whether to add any benchmarks for shorter-term, or acute exposures by September 2029. However, public health needs to be protected now because it is unjustifiable to have Coloradans suffer the consequences of this gap in protection in the interim. If there is no way to expedite this determination, then a moratorium on permitting activities affected by this determination is the only rational and just approach to the issue. At minimum, the basis for how the commission will make this determination must be made clear now.

Likewise, we are concerned about the exemption of natural gas-fueled engines with a design rate less than or equal to 2.0 million British thermal units (MMBtu)/hour.  Because these engines are currently exempt from permitting, the number of engines is unknown. These engines are stationary sources and as such should not be excluded. The density/proximity of such engines to each other and to residences needs to be considered. There should not be a blanket exclusion particularly in ozone non attainment areas.   

The Needs Assessment states that Oregon’s CAO program will not establish “a direct, quantitative correlation between TAC emissions reductions and potential risk reductions attributable to the program”. Does Colorado have a robust analysis of emissions data in place that can accomplish this quantitative correlation? If not, how will we know if the program has indeed fulfilled the intention of HB22-1244 and that the public is indeed being protected from toxic pollutants.

The Needs Assessment proposes to lower the RALs by 20% in DI communities. This strikes us as arbitrary and we wonder how that percent was decided upon and if it would be applied uniformly.  We also strongly believe that many DI communities “are” rather than “may be” exposed to “multiple sources of air pollution at higher rates”. That is the definition of a DI community. We would like to see this stated as a fact and not a possibility.

The four step permitting framework is unclear about NAAQS standards.

In the Needs Assessment, the Division recommends a 4-step approach to assess each project beginning with “1) Determine whether the project under review will result in an increase in a PTAC  emission rate(s)”. However, the Needs Assessment also states “The initial step of the permitting process is for the Division to determine that the source will not cause a violation of National Ambient Air Quality Standards (NAAQS)”. 

We understand this to mean that before a new permit can even be considered, the presence of criteria air pollutants (in a 1.5 kilometer area) must not exceed NAAQS for outdoor air. Given that the Front Range falls within a severe ozone nonattainment area, how will the Division comply. How will Title V permitting requirements be assured?

In closing, we appreciate the amount of time and serious effort that went into drafting the Colorado Air Toxics Permitting Program Needs Assessment. We appreciate the efforts to make the process understandable, such as the Examples of a Simple Division-Developed Risk Screening Tool. We appreciate the extensive research of programs in other states. We appreciate the efforts of the AQCC in engaging community input. 

With the reality of a loss of Federal regulation, this is the time for Colorado to demonstrate leadership in protecting our people and environment, particularly those populations that are most vulnerable. 

Respectfully submitted, 

Barbara Donachy, MPH
PSR Colorado Board of Directors