Suncor sues CDPHE over new air quality monitoring requirements

Suncor Energy says state environmental officials stepped out of bounds last month when they announced new, more stringent requirements for air quality monitoring around the Commerce City refinery’s borders, and the Canada-based oil and gas company is asking a judge to intervene, according to a lawsuit.

In a lawsuit filed Friday in Adams County District Court, Suncor says the state Air Pollution Control Division made significant, last-minute changes to the company’s fenceline monitoring plan that would cause Suncor to build one system to meet a Jan. 1 deadline only to tear it down and build a completely new system six months later.

“This is not only improper and impractical, but unachievable,” the lawsuit said.

The lawsuit asks a judge to declare the division’s new mandates invalid under a 2021 state air monitoring law and to put a stop to the demands.

That law requires four companies in Colorado to create fenceline monitoring programs to sample the air for hydrogen cyanide, hydrogen sulfide and benzene — compounds that are a byproduct of refining oil into gas and that can cause cancer and other illnesses.

Suncor, which is the single largest source of air pollution in Colorado, will be the first company to install a monitoring system. Sinclair Oil and Phillips 66 in Commerce City and the Goodrich Carbon plant in Pueblo are the other sites that will be required to monitor their air emissions.

Suncor also said the Air Pollution Control Division should not be allowed to add more compounds to the pollutants list it wants the company to monitor. The state wants the refinery to measure for 11 additional compounds, including nitrogen dioxide, sulfur dioxide, toluene, ethyl benzene, xylenes and other compounds that are found in oil and gas emissions. But Suncor argues in the lawsuit that those compounds are not required to be monitored under state law and do not qualify as “hazardous air pollutants.”

Kate Malloy, an Air Pollution Control Division spokeswoman, said the agency would not comment on pending litigation.

“As previously shared, the division required changes to Suncor’s fenceline monitoring plan to ensure it meets all legislative requirements and to be as protective as possible for the North Denver and Commerce City communities,” Malloy wrote in an email. “The division is committed to holding Suncor accountable and will continue doing everything in its power to protect public and environmental health.”

In mid-August, the air pollution division, which falls under the Colorado Department of Public Health and Environment, announced it was imposing tougher regulations on Suncor’s air monitoring plan after people who live near the refinery called for more oversight. The air pollution division oversees Suncor’s air permits and its compliance with federal and state environmental laws.

Suncor’s lawsuit says company officials met multiple times with state regulators to go over the plan, and the division never raised objections or requested any design changes even after it was submitted in January.

Suncor’s plan included installing sensors in shelters along the perimeter that would capture an air sample once every 15 minutes. Those sensors would collect samples in one direction before rotating and collecting a sample from the opposite direction.

Michael Ogletree, the air pollution control director, told The Denver Post last month that Suncor’s plan would only monitor 50% of the facility 50% of the time.

But changing sensor set up now will force the company to redesign its shelters, relocate them and order more equipment, the lawsuit said.

All of the Air Pollution Control Division’s new requirements will cause Suncor to miss its implementation deadlines, the lawsuit said. The state wanted Suncor to submit a new plan on how it would achieve the new requirements by November. The company’s first deadline to comply with state law is Jan. 1 and there are additional deadlines in April and July.

It is unclear how the lawsuit may impact those deadlines.

In an emailed statement, Donald Austin, Suncor’s vice president of the Commerce City refinery, said, “Our hope is to work with the Air Pollution Control Division to reach agreement on the plan, which will provide us the certainty to complete the work we began in 2021. Our goal is to launch the program as quickly as possible, although January 1 is not feasible.”

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