Colorado regulators this week will try to define what it means to live in a community that is disproportionately impacted by poor air quality and what steps should be taken to protect the people who live there from the toxins that roll out of factories and into the air they breathe.
Proposed environmental justice rules under consideration by the state’s Air Pollution Control Division would put more stringent air-quality monitoring in place for specific pollutants in areas such as Commerce City, north Denver, Pueblo and other parts of the state.
Businesses that contribute to air pollution would be required to pay fees to help fund the monitoring, according to the proposal.
Those who have worked on the new rules say Colorado is taking a historic step and is poised to follow New Jersey in adopting environmental justice rules.
“I’m really proud that we are that groundbreaking place in being the second in the nation to adopt this kind of law because I think it does demonstrate Colorado’s commitment to environmental justice,” said Joel Minor, manager of the Colorado Department of Public Health and Environment’s environmental justice program.
Meanwhile, those who live and work in the communities where pollution is the worst say the state’s proposed new rules are not tough enough and give too many breaks to industry.
The draft under consideration this week is not upholding the spirit of the 2021 legislation that ordered environmental justice rules be created in the first place, said Patricia Nelson of Green Latinos Colorado.
“They’re providing more outs for polluters who are hurting communities,” Nelson said.
The Colorado Air Quality Control Commission should decide on Thursday what the proposed environmental justice rules will be. The eight-member commission, which is appointed by the governor, will hear an outline of the rules from the Air Pollution Control Division, which wrote the draft, as well as testimony from representatives of environmental groups and the industries that will be affected by the new regulations.
The commissioners will be able to submit changes before voting on the rule. That vote is expected to come late Thursday.
Colorado is under investigation by the Environmental Protection Agency for discriminatory air pollution, and the agency is scrutinizing how the state regulates its biggest polluters, which often are located in low-income neighborhoods or in communities where a majority of residents are Black, Latino, Indigenous or immigrants.
The commission was ordered to create environmental justice rules by HB21-1266, which was passed by the state legislature in 2021. And it is supposed to have the new rules in place by June 1.
Under the bill, disproportionately impacted communities include those where most residents are low-income or identify as minorities, or where 40% or more of the residents are cost-burdened when it comes to housing, meaning they spend more than a third of their incomes on rent or mortgages and utilities.
The bill also gave the state health department authority to include communities where there is a history of environmental racism, perpetuated by redlining and laws that discriminated against Black people, Latinos, immigrants or Indigenous residents.
So far, areas that have been identified as disproportionately impacted communities include Commerce City and north Denver, almost all of Pueblo, neighborhoods in Montrose and Delta on the Western Slope, the lower Arkansas Valley and some areas in the San Luis Valley, Minor said.
Under the proposed rules, any company applying for a new air permit or modifying an existing one would be required to submit an environmental justice summary on the impacts their operation will have on the surrounding community. Those companies will be subject to additional modeling in an attempt to forecast how much pollution they will emit and then will have to pay into a system that monitors air quality around their perimeter.
Critics say those fees are too low and will not collect enough money to support robust air monitoring programs.
Meanwhile, the businesses that will be impacted by the new regulations are pushing back. They worry the rules will impact economic development by discouraging new businesses to locate in those communities.
A coalition of 23 county and city governments on the Western Slope submitted a rebuttal letter, saying the impacted communities in their areas were sparsely populated and dependent on the oil and gas industry for income. The coalition argued that the state’s method for identifying impacted communities is flawed and should be redesigned.
“We are hopeful through this rulemaking process that the Commission will endorse and adopt rules underpinned by sound data and science for regulatory requirements to protect air quality in a manner that also protects jobs and economic growth in our communities – -while also encouraging industry’s continued commitment to reducing emissions,” the governments’ rebuttal said.
The Colorado Mining Association made a similar point.
“The mining sector is known for having high paid employees,” the association’s rebuttal said. “This air program should not work at cross purposes with the need for economic development in areas not adversely impacted by existing air pollution.”
Under state regulators’ plan, the toxics that will be tracked are:
Benzene: A chemical that naturally is found in oil and gas refining that can cause blood cancers and menstrual irregularities
Toluene: A colorless liquid with a sweet smell and taste that is found in oil refining and the manufacturing of paints, solvents, glues and explosives. It can cause long-term groundwater contamination, and it can cause eye and nose irritation, headaches, nausea and dizziness to people who are exposed to it.
Ethyl benzene: A chemical used to manufacture plastics that is a colorless liquid that smells like gasoline. Short-term exposure can cause respiratory issues and dizziness.
Xylene: This chemical is blended into gasoline and is also used to make paints and coatings. Short-term exposure can irritate the eyes, nose and throat and can cause gastrointestinal problems and have neurological effects. Long-term exposure can affect the central nervous system and cause headaches, fatigue, dizziness and tremors.
State law mandates that those four pollutants be measured, but environmentalists say more could and should be added to the list. During a public comment period on Tuesday evening, multiple people called on the air quality commission to lengthen the list of monitored pollutants.
“As it is, the rule does not adequately protect disproportionately impacted communities from other toxins,” said Ruth Hund, a Golden resident.
But Jessica Ferko, planning and policy program manager with the Air Pollution Control Division, said the environmental justice rules will work in tandem with an Air Toxics Act approved by the legislature in 2022. That bill requires five more toxins to be monitored, she said.
And the commission will be required to revisit the environmental justice rules every three years to make changes as necessary, Minor said.
“I think the legislature wisely realized this is a rapidly changing area and that’s important to not have this be a one-time rulemaking but to continually update our standards,” he said.
But Nelson said the new rules — as proposed — don’t go far enough to strengthen protections for the communities that for decades have suffered the most from the pollution that dirties the air and water.
“At the end of the day it took legislative directives to get where we are, and this is after decades of the community talking about the harms to our health,” she said.
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