September 9, 2015

John Hickenlooper

Governor, State of Colorado

Governor's Office

200 East Colfax Ave, No. 136

Denver, CO 80203

Sent by certified mail and email

Re: Denial of Due Process in Hearing by the Colorado Air Quality Control Commission --

Citizens’ Concerns regarding Sulfur Dioxide Concentrations that Exceed Safe Levels in 

Colorado Springs Area Under Federal District Court-Ordered Review by US EPA

Dear Governor Hickenlooper:

We, citizens of the Pikes Peak region around Colorado Springs, are greatly concerned and disappointed 

over the recent failure of the Colorado Air Quality Control Commission (Commission) to properly 

declare this region to be in "Non-Attainment" of federally mandated atmospheric sulfur dioxide (SO2) 

emissions levels. This occurred in spite of overwhelming evidence from independent professional 

engineering firms’ analyses in strict accordance with U.S. Environmental Protection Agency (EPA) 

guidelines, which show one-hour SO2 levels that are multiple times greater than the permissible level. We 

wish to bring this process failure to your attention and to point out the due process that was denied to 

citizens during this public process, and finally, to seek redress for this matter. 

To review, US EPA’s lack of proper action in implementing safe levels of sulfur dioxide (SO2) from 

fossil fuel power plants in public areas based on the health-based standards for SO2 set by the EPA in 

2010 prompted litigation by the Sierra Club and the Natural Resources Defense Council in 2013. In 

March of this year, US District Court, Federal District of California, accepted an agreement as resolution 

of that litigation.

1 That agreement instructs US EPA to designate certain geographical areas according to 

the levels of SO2 to which these areas’ citizens are exposed – to either “attainment” or “non-attainment” 

of the SO2 standards within a set time period. 

In Colorado, both El Paso and Morgan Counties have been identified in the Consent Decree by US EPA 

as first-round areas, the large sources identified for specific review in these counties are the Martin Drake 

Power Plant and Pawnee Plant, respectively. As you are aware, the Pikes Peak area is one of the most 

highly visited tourist areas, and Colorado Springs is the second most populated urban area in Colorado. 

Martin Drake is a 90 year old coal burning power generation facility that is located in the heart of 

																																																												 1 https://www.colorado.gov/pacific/sites/default/files/082015-SO2-materials.pdf Consent Decree, Sierra Club and 

Natural Resources Defense Council (Plaintiffs), v. Gina McCarthy, in her official capacity as Administrator of the 

United States Environmental Protection Agency (Defendant), in the United States District Court for the Northern 

District of California, San Francisco Division, Filed 03/02/15. 
downtown Colorado Springs, and that suffered significant damage from a major fire in 2014, causing the 

entire plant to be non-operational for three months and the fire-damaged generator for one full year. 

US EPA is now collecting all available data to assist in its designation of these two areas in Colorado, and 

on August 20, 2015 the Colorado Air Quality Control Commission held a public hearing in Denver 

(Hearing) to consider the recommendation of the Air Pollution Control Division (APCD) of the Colorado 

Department of Public Health and Environment (CDPHE).

2 The APCD’s recommendation, in 

contravention of the evidence, is that US EPA make a designation of “unclassifiable,” allowing additional 

time for these large sources to operate with no consideration of their impacts.3 The Commission accepted 

the APCD recommendation despite a glaring absence of scientific data to support the recommendation. 

We are writing to you as a group of citizens from El Paso County, who were in attendance at the Hearing

or wrote letters to the Commission in advance of the meeting concerning this issue.4 This group of active 

and retired professionals of the Colorado Springs area consists of scientists, grade school and college 

level educators, engineers, lawyers, IT and other business management professionals, many of whom took 

time from our workdays and previously scheduled activities to travel the over 140 or so round-trip miles 

to Denver to speak in the public comment session and clarify that sufficient data does indeed exist to 

show that hundreds of thousands of residents and visitors to the Colorado Springs area are exposed 

to ongoing violations of SO2 emissions from the coal-fired power plants in the area and are subject 

to serious health risks – and therefore that “non-attainment” is the appropriate designation for this 

area. A representative of over 600 people who signed a petition5 for proper consideration of this matter 

of serious health impact also spoke on the concerned petitioners’ behalf; in addition to a fourth grader 

who pointed to an enlarged map to show that his school with over 400 students is located directly in the 

path of the pollution plume.

6

In preparation for this hearing, citizens were hopeful that the Air Quality Control Commission, with its 

publicly-stated purpose to serve as “an inclusive body of citizen experts charged with leading, 

coordinating and advising on initiatives to achieve and maintain the cleanest air possible statewide” and

tasked to provide “clear vision, strategic direction and strong leadership role on issues of air quality 

control across the state,” would be open to an objective and fact based deliberation of the issue at hand. 

The assumption was that the Commission would consider the actual scientific analyses that had been 

conducted and submitted to CDPHE over the past 3 years showing serious violations of the NAAQS 

Standard for SO2 emissions. 

How disappointing that we instead observed an Air Pollution Control Division and Commission that 

acted wholly solicitous and deferential to the interests and concerns of the Colorado Springs Utilities, the 

polluting entity that prompted this need for federal intervention, while at the same time citizens who 

spoke at the hearing were made to feel by our public officials that we were interfering with a 

predetermined decision within a statutorily required process that should not be interrupted for any 

																																																												 2 The deadline for designation of these “first-round” areas by the EPA is July 2, 2016. 3 Colorado Air Quality Control Commission, Agenda Item Summary for August 20, 2015 Meeting Date. 

4 https://www.colorado.gov/pacific/sites/default/files/082015-SO2-comments_1.pdf 5 http://petitions.moveon.org/sign/epa-colorado-springs?mailing_id=30546&source=s.icn.em.cr&r_by=14023120 6

 Colorado Springs Gazette, Billie Stanton Anleu, August 20, 2015, at http://gazette.com/drake-gets-more-time-forair-quality-compliance-after-state-commission-ruling/article/1557783.
legitimate reason. For example, before the hearing, we were told by Mike Silverstein (Administrator and 

Technical Secretary of the Commission) that we would be allowed up to five minutes per person for 

public comment, and consequently much time was spent to prepare statements to the Commission 

accordingly.

7 However, at the hearing, Commissioner Clouse informed the first speaker (in a somewhat 

brusque manner) that our comments would instead by limited to three minutes, and while that speaker 

requested clarification about the conflict, Mr. Silverstein remained silent. Then, each citizen rose to 

articulate facts they had learned through research, and also describe, respectfully, their long-standing 

attempts to obtain answers and action from APCD around the issue of SO2 levels in Colorado Springs. 

One of the citizens who spoke, a retired Air Force pilot with over 1500 hours of flight time and the use of

the Colorado Springs airport’s National Weather Service (NWS) meteorological data, objected to 

APCD’s complete dismissal of engineering results on the basis of the agency’s remarks of “differing 

winds” within the six miles of essentially flat and uninterrupted terrain between Colorado Springs Airport 

and the Martin Drake Power Plant.8 Yet there followed not a single question by any one of the 

Commissioners about: a) the independent data showing significant SO2 pollution emission exceedences 

citizens must regularly endure, b) adverse health impacts from these violations, c) concerns that the 

Martin Drake facility’s permit has been expired for over five years, or d) the data presented by APCD that 

did not clearly reflect SO2 reductions in 2014 due to the fire at Martin Drake that caused significant down 

time at the plant. Some concern was expressed by Commissioners that APCD was dismissing the 

professional engineering analyses that incorporated meteorological data collected by the NWS at the 

nearby Colorado Springs Airport, yet the unanimous vote that followed by the Commission in favor of the 

APCD recommendation served to disregard this concern in effect. 

Then, to add further insult, at the close of the public comment session one of the Commissioners

exclusively inquired to a representative for the Colorado Springs Utilities, addressing her on a first-name 

basis: “Vicki, you would like to add anything?” Not even the remarks of the veteran pilot whose 

livelihood depended on knowledge of the meteorological conditions in exactly this area interested the 

Commissioners, who then unanimously supported APCD’s recommendation to brazenly dismiss credible, 

scientific results based on National Weather Service data. This wholly improper recommendation thereby 

conveniently allows the polluting entity additional time for compliance, counter to the express reason for 

the federal action and review -- allowing more time that residents, children, workers and visitors of the 

Colorado Springs area will continue to be exposed to unsafe levels of sulfur dioxide pollution. 

The Commission’s irresponsible actions at the hearing, and the neglectful actions of the Air Pollution 

Control Division for the past three years and continuing through last month’s hearing, are examples of 

ongoing concerns that state and federal agencies ignore their public mandates, and instead appear to 

behave according to the convenience of industry over the public, and that public officials act as though 

the credible information that crosses their desks is fully their own to control and withhold. 

Governor, as a scientist, we hope that you understand that the means to improve the health of our 

communities and our environment, and the policy decisions that support these actions, instead must be 

based on science, public interest and public input. Given the obvious questions and contradictions that 

																																																												 7 Email exchange between Maureen Barrett, Leslie Weise and Mike Silverstein, August 19, 2015. 8 Lisa Devore, P.E. of APCD in statements made before the Commission, August 20, 2015. 
were left unresolved in this hearing, it would be very difficult to otherwise observe that there was an 

unspoken and concerted plan between state officials and their industry client to fully shut down

discussion of the science and data around this public health issue, and to shut out concerns by the 

public. For examples:

- Why have the two, independently-prepared modeling studies, prepared by professional engineers 

and scientists with decades of expertise in air quality modeling, been ignored and/or dismissed by 

APCD since their results were sent to that agency as long as three years ago, while at the same 

time no professional analysis has ever been conducted to counter their appropriateness prior to 

the Hearing and recommendation to Commission and EPA?

9

 

- Why did the Air Pollution Control Division not demand a new permit application from the source 

as soon as these unsafe impacts were revealed in 2012 (particularly since Colorado Springs 

Utilities’ current permit for this source expired in 2006) – impacts that have instead been 

continuously allowed to this day?

- Why, instead of the meteorological data that reveal these unsafe impacts – must a different site be 

constructed to collect meteorological data, when there is already state-of-the-art equipment in 

place that the National Weather Service uses to collect and quality-assure meteorological data at a 

site that is separated from the source by only six miles of nearly flat, uninterrupted terrain?

- Why are data continuously withheld from the public that would allow an evaluation of the 

effectiveness of sulfur dioxide controls currently being installed at Martin Drake but not 

anticipated to be fully operational until 2018?

10

- How could data that are collected in the future by the source owner/operator, using a 

meteorological tower that will be constructed by them, and at a site selected by them (only six 

miles from the National Weather Service’s meteorological station at the widely-used regional 

airport), change the overwhelming conclusion of two independent professional engineering 

analyses using a federally-validated model that pollutants impacts exceed safe levels by multiple

times the allowed concentrations?

11

- Why, at the Hearing, did Air Pollution Control Division personnel respond to a Commission 

inquiry that the only implication of a “nonattainment” designation for our area is “more 

																																																												 9 Separate, independently prepared modeling analyses by two professional engineering firms (Wingra Engineering 

and Air Expertise Colorado, LLC) showed SO2 impacts that exceed safe levels in widespread areas around the 

Martin Drake plant. Wingra Engineering’s analysis was submitted to the APCD in September 2012, while Air 

Expertise results were presented to the APCD in September, 2013 including an offer to share all input and output 

files of the analysis, yet no request by APCD to review or obtain those files has ever been made. Included in public 

comments to Commission: https://www.colorado.gov/pacific/sites/default/files/082015-SO2-comments_1.pdf 10 The denial of these data was covered by a writer (Dave Philipps) for the Colorado Springs Gazette in “Neumann 

data kept secret,” April 12, 2014. http://gazette.com/utilities-effectiveness-of-neustream-scrubber-test-system-willnot-be-shared/article/1518094 That writer has since been issued a Pulitzer Prize for investigative journalism on an 

issue of public interest. 

11 Both analyses show that on the basis of permitted or actual SO2 emissions from the source, that impacts exceed 

health standards by up to a factor of 10 and greater. 
paperwork”

12 for her department, when federal law instead suggests much more serious 

implications for the state of Colorado and for our area? For example, by the Federal Highway 

Administration’s own description, federal funding could be withheld from projects including 

those involving the National Highway System, as a result of a nonattainment designation, even 

when the designation is for non-transportation related pollutants.

13 

- Why did staff from the Air Pollution Control Division state to the Commission that the 

implications would only be “more paperwork,” when instead federal law requires that new or 

modified sources in the area would need to obtain pollutant offsets and implement the very 

strictest control technologies?14

In closing Governor, given the wrongful government conduct we have observed on this matter of serious 

health and safety impacts by public officials, we specifically request that the following actions take place:

1. A review of this matter be conducted by the Office of the Governor, including the data 

considered by the Air Pollution Control Division in making its recommendation to the 

Commission and to the US EPA, and whether due process was denied to the public;

2. An appeal of the recommendation by APCD to the Commission that is afforded full and fair 

consideration by the appropriate State or Federal Official;

3. An informational hearing be held in Colorado Springs prior to the October 2015 meeting of 

the Colorado Air Quality Control Commission, so that the citizens that live and work in the 

geographic area under consideration with the most to gain or lose through this impending 

federal action, can learn the answers to these and other important questions, and have their 

voices properly heard. 

The contact for communications regarding this matter is Leslie Weise, who can be reached by cell at 

303.523.0016. Thank you for your consideration of this matter of highest priority of government 

functioning and citizens’ health and safety. 

Sincerely,

Colorado Springs Concerned Citizens for Clean Air

																																																												 12 Lisa Devore, P.E. of APCD in statements made before the Commission, August 20, 2015. 13 FHWA states that “highway sanctions could be imposed even when the SIP deficiency is not transportation 

related. Sanctions apply for all types of nonattainment areas, including those without transportation-related pollutant 

problems.” See http://www.fhwa.dot.gov/environment/air_quality/highway_sanctions/.

14 US EPA states that the consequences of a nonattainment designation include lowest achievable emission rate for 

new and modified sources; emission offsets; and opportunities for public involvement. http://www.epa.gov/nsr/naa.html
Colorado Springs Concerned Citizens for Clean Air

Jane Ard-Smith Jim Riggins

Ian Askill Mark Robinson

Maureen Barrett, P.E. Nicole Rosa

Steve Berger Jacquie Ostrom

Christopher Fagnant Jerry Unruh

Ian Johnson Laura van der Pol

Sam Masias Sandy Vanderstoep

Lee Milner Leslie Weise, LLM

CC: Sent by email

Colorado Air Quality Control Commission

Peter Butler, Ph.D.

John Clouse

Tony Gerber, M.D., Ph.D.

Chuck Grobe

Jana Milford, Ph.D., J.D.

Todd Mitchell

Curtis Rueter

Laura Teague

William Toor, Ph.D.

CDPHE - APCD

Lisa Devore, P.E.

Mike Silverstein

Dr. Larry Wolk

Colorado Springs Utilities

Vicki Card

Office of the Mayor, Colorado Springs 

Mayor John Suthers

US EPA, Denver Office and Enforcement Division

Adam Clark

Shaun McGrath

Alexis North

Timothy Rehder