(Republished with permission of 350CO)
Colorado Springs Utilities Hides Air Quality Report That Shows Health and Safety Violations
Asks Court to Punish Concerned Parent Seeking Report’s Public Disclosure
Controversy over pollution from the coal-fired Martin Drake power plant (Drake Plant) in the heart of Colorado Springs has swirled for years. Colorado Springs Utilities (CSU), the plant’s municipal owner-operator, has for years fought efforts by area residents and environmental groups to expose non-compliance with Clean Air Act and other regulatory obligations.
Misinformation and withholding information about air quality from public view and scrutiny, while claiming to meet air quality standards, has been pivotal to CSU’s strategy for continuing to operate the Martin Drake Plant. Even as harmful emissions from the plant have blanketed the area, the politics of air quality management, combined with secretive, behind-closed-doors decision-making, have enabled CSU to continue to escape regulatory scrutiny. Area residents deserve full transparency about threats to the health of their families from a utility that they own through their city. Otherwise, citizens are helpless to take action to protect themselves and future generations.
An Inadvertent Disclosure of an Air Quality Report
In November, 2016, the Colorado Court of Appeals inadvertently sent an air quality modeling report showing violations of air quality emissions standards concerning the Drake Plant to Leslie Weise, a Monument resident, 350 Colorado Springs volunteer leader, and mother of a Colorado Springs student at an elementary school near the Plant. The report was prepared for CSU by a contractor in 2013, but CSU has prevented it from being made available to the public. Weise had filed for an appeal of a lower court’s decision against the report’s disclosure, based upon attorney-client privilege asserted by CSU. Weise promptly informed the Court of Appeals regarding receipt of the report, and upon Court Order, returned the file.
In a stunning response by the City of Colorado Springs Office of the Attorney, the City of Colorado Springs has now requested that the Colorado Court of Appeals impose sanctions and fees upon Weise for discussing the records, which she believes was in compliance with the court order and well within her legal and ethical responsibilities.CSU is seeking sanctions and financial compensation for the City’s legal costs, which Weise, a single mother, working to protect the residents of Colorado Springs without compensation, can hardly afford. Further, on Dec 7th the Court of Appeals served an Order upon Weise, demanding that she Show Cause why she should not be cited for sanctions, which could lead to fines and even imprisonment if the court finds that she violated its Order. The Order has also had the impact likely hoped for by CSU of effectively gagging Weise from talking about the disclosure of the records or her attack by CSU.
The CSU action against Weise undoubtedly aims to frighten her into ending her efforts, and if successful, would have a chilling effect on other individuals standing up to protect the public from harm.
The City of Colorado Springs and CSU’s actions must be challenged by those concerned with health and safety of Colorado residents and visitors, environmental quality, democracy, Colorado Open Records law, and citizen’s rights vs. corporate power. Local residents and environmental and civil rights activists are mobilizing a campaign, coordinated by 350 Colorado, to defend Weise’s legal efforts to obtain public air quality reports withheld by a publicly owned municipal utility that has now targeted her. (More detail about this specific issue is included below in the “Background” section.)
The Path from Here
The contest over the coal-fired Martin Drake power plant has reached a critical point: if the Colorado Open Records Act action initiated by Weise succeeds, air quality information will finally be open to public scrutiny and to regulatory authorities including the EPA, which CSU has fought for years to prevent.
Public release of air quality reports withheld by CSU could have major consequences by verifying air quality violations. This could result in re-designation of CSU’s SO2 emissions from “unclassifiable” to non-compliance, which could lead to a legal mandate for CSU to clean up its emissions. It could also implicate CSU for reporting false or incomplete information over a number of years.
CSU is also being challenged by several other actions. WildEarth Guardians has filed a Notice of Intent to Sue over 3000 opacity violations of the Clean Air Act by emissions from the Drake plant. Combined SO2 and opacity violations could result in over $100 million in penalties by CSU. There are also legal actions against CSU for Breaches of Contract and Fiduciary Duties, regarding the scrubber it chose for the Drake Plant, and an appeal of the EPA’s failure to classify the plant as “non-attaining” of air quality standards.
Together, these challenges confront CSU’s mismanagement and operation of the outdated coal-fired Drake Plant, with a goal of substantial reductions of harmful emissions impacting local communities and possibly leading to closure of the outdated coal-fired plant – a win for local residents and for climate action.
Concerned citizens of the Colorado Springs region need your help to force CSU to be transparent and honest about air quality information and to clean up the Drake Plant. Please speak up – and also help by donating to support the legal actions against CSU and to defend Weise!
What You Can Do:
Colorado Springs City Council, which doubles as the Board overseeing CSU, needs to hear from elected leaders, local residents, citizens and organizations across Colorado that CSU’s behavior and actions are wrong: CSU needs to release the air quality report it is hiding, and it needs to stop attacking Leslie Weise for her Colorado Open Records efforts.
Please provide personal, written and/or financial support for this critical fight:
- Write to Colorado Springs City Council and to Colorado Springs Mayor John Suthers, to demand that CSU release the air quality report it is hiding and stop attacking Leslie Weise for her Colorado Open Records efforts
- Sign this petition: Tell the City of Colorado Springs: Release documents that show violations of air pollution
- Attend the CSU Utilities Board on Monday, December 19 – Location: 102 S. Tejon St., Colorado Springs
- 1pm – We will present the petition to the Utilities Board and the Mayor. Please stand with 350 Colorado Springs and use your rights to speak to the Utilities Board for 3 minutes about why this is so important.
- 12 Noon – Join the public protest outside the building.
- Contact the Media: Write a letter to the editor, or inform your favorite media source about this outrage.
- Contact US EPA, Region 8 and National: Tell EPA that it should demand ALL the air quality reports concerning SO2 pollution held by CSU and make the data available to the public. It has the power to request this information, so they should use it! What is CSU hiding? And why is EPA effectively enabling secrecy that prevents public access to air quality information?
- Provide financial support for Leslie’s legal defense. 350 Colorado is supporting the legal defense, but additional financial support is needed to meet the anticipated costs. Please help to ensure that Leslie’s courageous fight for clean air in Colorado Springs and transparency about air quality isn’t crushed by a corporate municipal utility. We MUST have each others’ backs – especially as we move forward into this new era of American politics. Please donate to 350Colorado.org to help us support Leslie’s efforts.
Thank you for your action and support. Together, we can win!
Background of Weise’ Open Records Act Matter against Colorado Springs Utilities
The municipally-owned coal-fired Martin Drake power plant (Drake Plant) in Colorado Springs is one of the most polluting and climate-damaging power plants in Colorado. This plant, located in downtown Colorado Springs, is releasing emissions that directly affect a large urban area. An estimated 387,000 people, including 120,000 children, live within five miles of the Drake Plant.
The 90-year-old Drake Plant, with generators that are above the average age in the U.S, was temporarily closed, following a major fire in 2014 that nearly resulted in an explosion. The Drake Plant has a history of air quality violations and safety issues. However, insular politics in Colorado Springs combined with municipal ownership and management of the Drake Plant lacking accountability, have resulted in the Plant’s continued emissions of sulfur dioxide (SO2) and other pollutants that exceed air quality standards. SO2 is a known cause of asthma and respiratory impairments, and children and elderly are particularly vulnerable to unsafe levels of SO2 in the air. Because of its unacceptable risks to public health & safety, air quality, social and economic values, as well as climate impact, the plant should be retired before its planned closure in 2035.
EPA Review of the Martin Drake Plant in 2015
Under a federal consent decree issued in 2015 in an unrelated case, the EPA and the State of Colorado Department of Health and Environment (CDPHE) conducted a review of the SO2 emissions from the Drake Plant. CSU hired AECOM to conduct a study on its behalf. Although Weise has good reason to believe that the AECOM study showed dangerous levels of SO2 emissions, confirming other studies, CSU did not provide this study to the EPA and CDPHE. EPA and CDPHE concluded that studies were inconsistent, therefore designated the Drake Plant as “unclassifiable.”
The court’s inadvertent release of AECOM’s report, confirmed Weise’s suspicions that AECOM had found violations of the National Ambient Air Quality Standards (NAAQS ) SO2 standard and that CSU has been aware of these violations. If the study had been considered in the EPA’s and CDPHE’s classification, the Drake Plant likely would have been classified as in “nonattainment.” Nevertheless, CSU has consistently claimed, also to the Colorado Air Quality Control Commission, that the Martin Drake plant was meeting all federal air quality standards. A citizens’ effort, led by Boulder Attorney, Robert Ukeiley, is underway to appeal the EPA designation so that it is properly classified as “non-attainment.”
Action to Fight Martin Drake Pollution
A group of local leaders in 350 Colorado and 350 Colorado Springs, including Leslie Weise, have sought public release of the air quality analysis being withheld by Colorado Springs Utilities. CSU rejected an Open Records Act request by Weise for the AECOM report, citing it was attorney-client privileged. CSU said that AECOM was hired in anticipation of lawsuits by the Sierra Club and others “to develop information to assist the City Attorney’s Office in providing legal services related to the Air Quality Control Commission and Environmental Protection Agency (EPA) proceedings concerning whether levels of sulfur dioxide in Colorado Springs meet air quality standards.”
Weise’s attempt to obtain the AECOM air quality study was denied at the El Paso County District Court level. Weise appealed to the Colorado Court of Appeals. The Court of Appeals inadvertently sent Weise the AECOM report that she was seeking. As a result, Weise learned that the report did contain air quality information that contradicts CSU’s claims about emissions from the Drake Plant. Weise realized that the Court of Appeals had sent the report to her by mistake and informed the Court. Weise was instructed by the Court to return the report without keeping or disseminating copies, however there was no mention in the order of discussing the report’s contents.
According to the Colorado Springs Gazette, the report shows that, contrary to assertions by CSU, the Drake Plant has been operating in violation of federal limits on SO2 emissions. These violations were withheld from the EPA in its 2015 designation determination. Weise has requested the Court of Appeals call for an immediate release of the air quality technical portions of the report and which are of utmost importance for public health and safety. In response the City of Colorado Springs has requested that the Court impose sanctions and fees upon Weise.
Two other analyses by professional firms found violations of SO2 standards. One was obtained by the Sierra Club; the other performed by engineer Maureen Barrett, principal at Air Expertise Colorado LLC. Weise says that the AECOM report corroborates the findings of the other analyses. CSU continues to deny the relevance of the information in the AECOM report, although its aggressive action to prevent public access to the information in the AECOM report suggests CSU fears its claims about air quality would be exposed as false.
Protecting Polluters, Attacking Activist
CSU’s latest tactic is to request the Court of Appeals to impose attorneys’ fees and sanctions against Weise, as she fights for the truth and transparency about the air pollutants that area residents are breathing and that are risking their health, substantiating that SO2 emissions have exceeded federal limits for years.
With the blessing of the Colorado Springs City Council (which also serves at the Utilities Board), CSU is now using its municipal-corporate weight to crush Weise, in its effort to avoid releasing alarming air quality information in the AECOM report for public scrutiny. Undoubtedly this is being done to scare Weise off of her mission, as well as to warn others. This is a tactic and precedent that we, as concerned citizens and activists cannot accept. We must join together to have each other’s backs and assure that we are not picked off individually.
Public release of the AECOM report being withheld could have major consequences by verifying that CSU has knowingly been violating air quality standards for years – and covering them up. It could result in re-designation of CSU’s SO2 emissions from “unclassifiable” to non-compliance, with CSU implicated for reporting false or incomplete information over a number of years, possibly resulting in significant penalties. This information should also be useful to at least two of the other three lawsuits being filed against CSU,
Public release of air quality information held by CSU could be of significance to another legal action against CSU as well, with potentially large financial consequences for CSU. WildEarth Guardians has filed a Notice of Intent to Sue over 3000 opacity violations of the Clean Air Act by emissions from the Drake plant. Combined SO2 and opacity violations could result in over $100 million in penalties by CSU. There is a citizen’s appeal of the EPA’s failure to classify the plant as “non-attaining” of air quality standards. In addition, there is a legal action against CSU regarding the scrubber it chose for the Drake Plant.
The escalating contest between CSU and Weise has received coverage in the Colorado Springs press. For instance, the Colorado Springs Gazette reported on Nov 21st about the effort by Weise to obtain documents that Weise contends hold data showing that sulfur-dioxide emissions from the Drake power plant violated federal standards contrary to filings by Colorado Springs Utilities. On Nov 30th, The Gazette reported the legal action for sanctions by CSU against Weise. In addition, there have been numerous Letters to the Editor by concerned citizens published in the Gazette.