Colorado AG’s Office Appoints Attorneys for CDPHE Whistleblower Investigation

A sign for the Colorado Department of Public Health and Environment building.
The Colorado Attorney General announced last week that Special Assistant Attorneys General had been appointed from an outside organization to conduct an independent investigation into whistleblower allegations against the CDPHE trying to prevent air quality checks by employees. / Photo courtesy Wikimedia Commons.

The Colorado Attorney General’s Office released a statement last week announcing that attorneys from a particular firm were selected to act as Special Assistant Attorneys General in an independent investigation into allegations that the Colorado Department of Public Health and the Environment ordered modelers and created policies to hide air pollution violations.

In a statement, Colorado Attorney General Phil Weiser said that after the CDPHE’s executive director requested an independent assessment of the claims submitted, the office opened an independent investigation on the allegations from the Air Pollution Control Division staff. By using a competitive process, the attorney general’s office appointed attorneys at the firm of Troutman Pepper Hamilton Sanders LLP.

Several special assistants were announced in a letter to include Mack McGuffey, Charlie Peeler, Melissa Horne and Shawn O’Brien of the Troutman Pepper firm. “Your appointment is a limited one. It does not authorize you to act on behalf of or represent the State or any of its agencies in any other capacity,” the letter states.

This development grew from allegations leveled at the CDPHE by three employees who wrote a March 30 letter to the Environmental Protection Agency Inspector General Sean O’Donnell over allegations that the CDPHE was creating policies and encouraging workers to hide or not check for certain violations of the National Ambient Air Quality Standards, which sets standards for certain pollutants harmful to public health and the environment. 

The employees’ letter alleges that the CDPHE urged them to ignore violations of air quality standards in issuing permits, and that the CDPHE enacted a rule on March 15 that prohibits air quality modeling staff from reviewing NAAQS compliance in certain situations and substances.

According to a Request for Information from the Colorado Department of Law, the DOL announced in April that it was seeking legal services from a firm to represent the governor and the CDPHE, and also to serve as special assistant attorneys general in conducting an independent investigation of allegations regarding non-enforcement of NAAQS as alleged by the APCD staff. These same special assistants are expected to perform an independent legal analysis of the CDPHE’s statutory authority and discretion in the state’s legal obligations under the NAAQS program and create a public report.

The letter writers worked with the Public Employees for Environmental Responsibility, or PEER, an organization supporting both current and former public employees seeking a “higher standard” in agencies by defending whistleblowers.

Kevin Bell, PEER staff counsel, told Law Week that as of July 7, no action had been taken by the CDPHE to instate whistleblower protections. At the time of the conversation, Bell said there wasn’t any indication from the CDPHE that any action would rise to that level. The only action taken thus far, according to Bell, is that the three CDPHE analysts have not received any new work for the last six months. Former CDPHE employees contacted the PEER group after learning about the allegations and voiced concerns reaching as far back as 2010 on issues within the agency, Bell said. 

At around the same time as a disclosure from PEER, the CDPHE’s modeling guidance was pulled off the department’s website, including when such modeling is required, according to Bell.

According to a copy of the letter sent to O’Donnell, the “blanket prohibition” on air quality modeling staff reviews of NAAQS compliance was issued on March 15, and on March 30, the three employees requested the office to review allegations of “violations of law, mismanagement and abuse of authority by CDPHE, particularly a new policy set by the office which prohibits employees from conducting legally mandated modeling of air pollution from new stationary sources of air pollution. 

“We request that your office review the following alleged instances of violations of law, mismanagement, and abuse of authority by CDPHE, particularly a new policy set by the office which prohibits employees from conducting legally mandated modeling of air pollution from new stationary sources of air pollution,” the EPA letter states. The letter to the EPA alleges the CDPHE issued a blanket prohibition on air quality modeling staff from reviewing NAAQS compliance for hourly nitrogen dioxide and sulfur dioxide limits, three-hour standards for sulfur dioxide and daily standards for particulate matter smaller than 2.5 micrometers. 

Allegations of unlawful acts and omissions by the CDPHE include suppressing information demonstrating pending permits could lead to modeled violations of NAAQS; approving permits violating NAAQS and ordering staff to ignore modeled NAAQS violations conflicting with “nonbinding agency guidance documents,” according to the letter sent by CDPHE staff.

The EPA letter contains what it refers to as an incomplete list of several allegedly unlawfully issued permits which include sites from across Colorado. These permits include the Williams Willow Creek Gas Plant in Rio Blanco County, Martin Marietta Monaghan Facility in Adams County, Cripple Creek & Victor Gold Mine in Teller County and the Asphalt Specialties Central Plant in Weld County, among others. Specifically, the letter alleges that a CDPHE modeler was “ordered to falsify data in a modeling report regarding [the Cripple Creek & Victor Gold Mine] to ensure that no modeled violation would be reported.”

PEER also sent CDPHE Director Jill Hunsaker-Ryan a letter stating they were requesting that they receive protection under the Colorado Whistleblower Protection Act and to bring the air permitting program into compliance with the Clean Air Act and the Colorado Air Pollution Prevention Control Act. Further, the letter alleges that CDPHE employees and conservation groups provided “vigorous insistence” that the policy was illegal, the “APCD continued to defend the policy of non-enforcement.”

Bell said that in addition to the state investigation, a separate EPA investigation is taking place handled by the EPA’s Region 8 located in Colorado. This stems from the complaint filed with the EPA Inspector General, and instead of the inspector’s office looking into it, program staff from the EPA were tasked to review the allegations. Bell said he speculated that the decision was due to the program staff’s familiarity with the specialized information and methodologies alleged in the complaint.

“These are all extremely technical questions, and ones that unless you have a technical background in it or devote a couple of months to learn about it … it’s really difficult to say you can make a finding one way or the other if there was any wrongdoing committed,” Bell said.

Concerns were raised, Bell said, over the EPA program staff’s responsibility to overview day-to-day operations of the Clean Air Program for the CDPHE and their involvement with the investigation. However, Bell said the EPA felt that the program staff would be coming in with fresh eyes despite the history, as the concerns raised were not in areas routinely spot-checked state-level minor permits. Bell added that the EPA hasn’t looked at these questions before in a context relating to Colorado “or really any of the other states” the organization felt they could go in with “fresh eyes.”

“That they were even thinking about that is encouraging, because it shows they’re trying to do their job in good faith,” he said.

The Colorado Attorney General statement concludes, “In order to maintain the impartiality and integrity of this ongoing investigation, we cannot comment further at this time.”

The CDPHE did not return a request for comment.

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