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 ’ analyse s 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 l ack 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 Defen se 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 t o which these areas’ citizens are exposed

– to either “attainment” or “non

- attainment” of the SO2 standards within a set time period

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

as first

- round areas , t he 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 m ost 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 Northe rn 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 t o 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 t hese two areas in Colorado , and

o n August 20, 2015 t he Colorado Air Quality Control Commi ssion 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 reco mmendation 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 o ther business management professionals, many of whom took time from our workdays and previously scheduled activities to travel the over 1 40 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 ri sks

– and therefore that “non

- attainment” is the appropriate designation for this

area

. A representative of over 600 people who signed a petition 5 for proper consideration of this matter of serious healt h impact also spoke on the concerned petitioners’ be half ; 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

I n 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 statew ide ” and tasked to provide “ clear vision, strategic direction and strong leadership role on issues of air qu ali ty 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 emission s

.

How d isappointing that we instead observe d a n 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

- spring s?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

- for

air

- quality

- compliance

- after

- state

- commission

- ruling/article/1557783

.legitimate reason . For example, b efore the hear ing
, 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 c onflict , Mr. Silverstein remained silent

. Then, e ach 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 Comm is sion ers about : a) the independen t data showing significant SO2 pollution emission exceede nces 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 engineer ing analyse s 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 di sregard this concern in effect

. Then, to add further insult
, at the close of the public comment session one of the Commission ers 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 support ed APCD’s recommendation to braze nly 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 irrespon si ble actions at the hearing, and the neglectful actions of the Air Pollution Control Division for the past three years and continuing thr ough last month’s hearing, are example s of ongoing concerns that state and federal a gencies ignore their publ ic mandates , and instead appear to behave acco rding to the convenience of industry over the public
, and that public o fficials act as though the credible information that crosses their desks is fu lly their own to control and withhold.

Governor, a s a scientist, we hope that you unde rstand that the m eans to improve the health of our communities and our environment, and t he 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 t he science and data around this public health issue , and to shut out concerns by the public . For example s :

- Why have the two, independently

- prepared modeling studies, prepared by professional engineers and scientists with decades of exper tise 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 ?

- W hy are data continuously withheld from the public t hat 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 )
, c hange the overwhelming conclusion of two independent professional engineering analyses using a federally

- validated model that pollutants impacts exceed safe l evels by multiple times the allowed concentrations ? 11

- Why , at the Hearing, d id 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 requ est 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) f or the Colorado Springs Gazette in “Neumann data kept secret,” April 12, 2014. http://gazette.com/utilities

- effectiveness

- of

- neustream

- scrubber

- test

- system

- will

not

- be

- shared/article/1518094 That writer has since been issued a Pulitzer Prize for investigat ive 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 o ur 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 pol lutants

. 13

- Why did staff from the A ir P ollution Control Division state to the Commission that the implications would only be “ more paperwork
, ” when instead federal law requires that new or

m odified sources in the area would need to obtain pollutant offsets and implement the very strictest control technologies ? 14

In closing Governor
, g iven the wrongful government conduct we have observed on this matter of serious health and safety impacts by public officials , w e specifically request that the following actions take place:

1. A review of this matter be conducted by the O ffice 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. A n appeal of the recommendation by APCD to the Commission that is afforded full and fair consideration by the appropr iate State or Federal Official ;

3. A n 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
geogr aphic area under consideration with the most to gain or lo se 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 303.523.001 6. 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

ne w and modified sources; emission offsets; and opportuniti es for public involvement. http://www.epa.gov/nsr/naa.htmlColorado 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 Rehde r