Colorado Compliance

Colorado Compliance

The state's sole independent source of business-related environmental regulatory and compliance data.

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    An environmental engineer and 30-year veteran EPA's Denver regional office on Oct. 8 sought "whistle-blower" protected status as he urged congressional officials to review a controversial EPA report concerning the consequences of hydraulic fractioning on ground water supplies. In an 18-page statement sent to EPA's inspector general, Nikki Tinsley and members of Colorado's congressional delegation, the whistle-blower, Wes Wilson, complained that EPA's final report on hydraulic fractioning is fundamentally flawed and likely not protective of drinking water supplies in areas where hydraulic fractioning is used. The fallout from Wilson's complaints could have far-reaching ramifications for Colorado -- home of a vast majority of the San Juan Basin (SJB) where that type of drilling is often used. The SJB accounts for fully 70 percent of the nation's coal bed methane production -- a huge beneficiary of hydraulic fractioning. Complete text of Wilson's letter is available here (*pdf file; 1.2 M).

SEPTEMBER 30, 2004

UP FRONT

2   EPA Accused Of Muzzling Staffers As Silly Season Begins

    Top officials with the Environmental Protection Agency’s Region VIII office in Denver have ordered agency staffers to steer clear of reporters as the national election season enters its home stretch. But regional leaders, rather than worrying about national politics, appear far more concerned with the Colorado race to fill the Senate seat put into play both the unexpected retirement of outgoing Senator Ben Nighthorse Campbell. That seat is being pursued by Colorado Attorney Ken Salazar, the state’s top environmental cop, and brewery magnate Peter Coors in a high-stakes and high profile campaign that could conceivably change the balance of power in the U.S. Senate. This worry over Colorado politics is evidenced by examples cited by regional leaders in an internal memo to staffers. EPA’s Region VIII office, which covers the sprawling territory comprised of six states and 27 tribal nations, has forbidden staffers to speak to reporters about two Colorado Superfund sites in particular: Lowry Landfill and the Summitville mine — sites that have generated loads of controversy and in the process consumed gallons of ink, tons of newsprint and thousands of trees.

The tale begins when Kerrigan Clough, EPA’s deputy regional administrator, sent an e-mail reminding agency employees of the importance of the Hatch Act (a 1939 law requiring federal employees to abstain from political activities on federal time or using federal resources) and instructing them to respond to media inquiries with the following statement: "No Comment." Staffers were further instructed to refer inquiries to the director of region’s communications office or her right-hand man. (This differs from a similar directive issued by EPA’s Region V office in Chicago that directed those agency staffers to refer inquiries to media staffers based on the medium in question, i.e., air, land, water, etc. The difference being that media staffers in Region VIII, which likely would have knowledge responsive to inquiries, were effectively muzzled in favor of their higher-ups who don’t work the issues on a daily basis — not to mention muzzling the front-line program staffers that have the scientific knowledge regarding a particular issue.)

Klough’s e-mail was subsequently reinforced by one later that day that specifically warned staffers about the Lowry and Sumittville sites, sites that have vexed EPA and the Colorado Department of Public Health and Environment (CDPHE) for over a decade, and continue to plague the two agencies. Those two sites, from EPA Region VIII’s view, also appear to be problematic for candidates Coors and Salazar — hence the clamp down on discussing them.

The heavy-handed directives brought a predictable complaint from the activist group Public Employees for Environmental Responsibility (PEER) which complained of regional efforts to "prevent EPA management from being surprised" by media reports. "The ultimate sin in the Bush administration is going off message, especially when that discordant note is authoritatively accurate," said PEER executive director Jeff Ruch, whose organization is challenging Bush administration non-disclosure policies for federal workers. "This policy shows the EPA political leadership’s profound fear of the expertise of its own professional staff."

The August 31 e-mail succinctly instructs staffers how to handle press calls. "Rather than give you separate guidance each time (political inquiries) arise, and since it is 2 months before election day there are likely to be plenty more, here is how to handle inquiries for information that seem partisan: The response is ‘no comment,’" states the e-mail. An EPA staffer said the e-mail was sent after several Region VIII employees received phone inquiries regarding the environmental records candidates Coors and Salazar. And the environment is shaping up to be an important issue in the senate race as shadowy so-called "527 groups" (outside organizations named after the section of the tax code they operate under) have purchased large chunks of air time to promote their preferred candidate, using the perceived environmental shortcomings of the opponent as an excuse to reject his candidacy.

The e-mail also instructs staff not to discuss issues related to the Lowry landfill, a Superfund site where the Adolph Coors Co. and its subsidiaries rank among the largest potentially responsible parties (PRPs). One EPA staffer told PEER the issue is politically charged because Colorado health officials are under fire for promulgating a new policy for indoor levels of trichloroethylene that critics say are insufficiently protective (see CC 7/04, p. 8). While that claim might not hold water, the Lowry landfill site has long fostered criticism about treatment techniques used to remediate polluted groundwater from the site (see CC 3/93, p. 13).

Further south in the San Luis Valley where candidate Salazar hales from — and where the Summitville mine Superfund site sits atop a lofty 11,500 foot perch covering some 1,400 acres — EPA officials have declared that staff comments on that subject are verboten, as well. Salazar, who as Colorado’s AG sued a number of PRPs for the site, has come under fire for settling cleanup litigation with the mine’s promoter, Robert M. Friendland, for $27.5 million (see CC 12/00, p. 20). Critics of that settlement point to remedial costs for the site that approach $200 million. Those same critics conveniently forget that when Summitville was first proposed for Superfund listing, cleanup costs were pegged at $70 million (see CC 5/93, p. 24).

This is not the first time Summitville has dogged Salazar. The issue has surfaced in both of his campaigns for Attorney General, and he has overcome it each time. Nor has Coors escaped controversy on his company’s environmental performance. The Golden-based has company a long history of settling environmental enforcement actions concerning air and water allegations with EPA and CDPHE, a massive fish-kill with Colorado’s Division of Wildlife and stretching all the way back to 1990 when it pleaded guilty to two criminal misdemeanor counts of contaminating groundwater and failing to report the contamination to regulatory authorities. At that time, state officials alleged that Coors violated water contamination notification standards and illegal discharged hazardous waste into groundwater and into a creek near its facility from 1981 to 1984. The company was fined $200,000.

EPA Region VIII officials steadfastly maintain they are seeking only to enforce the Hatch Act requirements and do not intend to muzzle staffers. This led one industry representative to remark on the rich irony that EPA Region VIII’s former administrator, Bill Yellowtail, never issued Hatch Act-related memoranda when he held the top job. Yellowtail was suspended from his old job without pay for 100 days for violating the Hatch Act (see CC 9/00, p. 9).

3   Groups Target NOx At RMNP

4   Under Pressure, EPA Weighs In

5   Proposed Plant Draws Predictable Protests

6   CDPHE Lauds Over 30 Groups And Firms

9   Pollution Prevention Champion Awards

ROCKY MOUNTAIN BRIEFS

COGCC gets new boss ... Colorado gets new USACE office ... All begin on page 10

REGULATORY ROUNDUP

11   Air Quality Regulations

11   AQCC Members Deliberate Diesel

11   APEN Rule To Be Revamped

12   More MACT Updates Coming

12   Hazardous Waste Update

12   HWC To Vote On New CAMU Revisions

    Colorado’s Hazardous Waste Commission (HWC) will gather for just the second time this year on Oct. 19 to vote on a sweeping package of revisions to the state’s regulations governing corrective action management units (CAMUs). A request for the rulemaking hearing was approved by HWC members at their July meeting on a 6-0 vote, with Commissioner Johnson abstaining based on ongoing CAMU-related activities at her employer’s facility — Valero’s Commerce City refinery.

The amendments up for consideration include:

Revising the definition of "Remediation ...

ENFORCEMENT REPORT

13   Federal Enforcement

13   Wetlands Filling Costs Two Firms

13   EPA And BP Reach Terms On Spill

14   Sludge Dumping Nets EPA, State Action

15   USFWS Probes Bird Deaths At Flats Tank

15   State Enforcement

15   HMWMD Does Multi-State Enforcement

17   Another NOV Possible For EnCana

18   Last Chance Gets Another Chance

SUPERFUND/HAZARDOUS WASTE

18   Air Force Still Puzzling At Lowry

19   Flats Officials Debate Plutonium Count

19   D.O.E.: RFETS Cleanup Gaps Bogus

20   Cotter Ramps Up West Slope Mining

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22   Air, Audits And Permitting Titles

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Colorado Compliance is the state's sole source of independent business-related environmental regulatory and compliance data. Subject matter (no advertisements accepted) is limited to administrative, legal and public policy developments impacting commercial activities conducted in Colorado. Published monthly by Compliance Publishers, Inc., Denver, Colorado. A limited number of annual subscriptions are available for $375.00 per year.

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Phone (303) 333-4750 -or- (800) 662-2269

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