‘Smoke Screen’ Plaguing Colorado Air Quality Board, Part One

This story — Part One — by Chase Woodruff appeared on Colorado Newsline on Monday September 20, 2021.

Few Coloradans know the Air Pollution Control Division by name, but every time they take a breath of Rocky Mountain air, they’re impacted by the decisions it makes.

A branch of the state health department with a staff of about 200, the APCD is tasked with overseeing Colorado air-quality policy and, increasingly, with leading many of its efforts to transition to clean energy and battle climate change.

It’s important work that provokes strong opinions and sharp disagreements. Within the last year, the APCD has been sued by multiple environmental groups that accuse it of failing to implement critical climate legislation. Several of its own employees have filed a formal whistleblower complaint that has prompted both state and federal investigations. In July, it abruptly withdrew a pending transportation-emissions rule in a procedural maneuver that state lawyers said was unprecedented. As the agency regulating Front Range air quality, it faces an imminent federal downgrade reclassifying the region as a “severe” violator of the Clean Air Act.

All of this has unfolded as Colorado has experienced its smoggiest summer in more than a decade.

And the APCD’s leadership doesn’t want to talk about any of it.

As polluted air has choked the skies above the Front Range in 2021, a similarly thick haze has settled over the APCD, shrouding the agency’s operations and decision-making in secrecy. The division has declined or ignored more than a dozen separate Newsline interview requests since July. Its director, Garry Kaufman, has participated only in rare interviews on select topics, and the division hasn’t held any press conferences or other media availabilities this year.

Senior officials at the Colorado Department of Public Health and Environment, which oversees the APCD, also declined repeated interview requests, as did officials with Gov. Jared Polis’ office.

“It’s pretty tight right now,” Polis spokesperson Conor Cahill wrote in a September 8 email.

State officials have, instead, insisted on communicating exclusively by providing written responses to submitted inquiries, a format through which they have consistently refused to provide timely, straightforward answers to direct questions.

The resistance to media scrutiny is part of a larger hostility within the APCD towards accessibility and public disclosure, according to several former CDPHE employees, as well as attorneys representing three whistleblowers within the division. They paint a picture of an agency where public communication is constantly subject to top-down political interference and a reluctance to offend “regulated entities” like oil and gas companies and other industrial polluters. From inspection reports of major air pollution sources to policy statements to advisories about ongoing public health incidents, employees must navigate layers of approval processes that frequently result in delays, heavy editing and even outright suppression of information. One ex-staffer said that he was instructed that the department’s emails are set to auto-delete “to get around” the Colorado Open Records Act.

In the APCD’s inspection and enforcement units, these practices have created what Jeremy Murtaugh, who worked in the APCD as an inspector for 13 years before leaving in 2019, called a “culture of fear” among career staff. Beginning in the mid-2010s, new approval processes for the periodic inspection reports filed by division employees frequently resulted in interference from supervisors, he said.

“They would often say, ‘Well, I don’t think this is a violation,’ and basically make you take stuff out,” Murtaugh told Newsline in an interview. “Or, ‘This is a touchy subject, we don’t want to get into this.’ It really brought to bear a political-tinged pressure to inspectors doing their work.”

Jeremy Nichols, an advocate with environmental group WildEarth Guardians, has dealt with the APCD on a wide range of air pollution issues for over 15 years. In an interview, he said that the division’s level of transparency “has been horrendous.”

“The sense I’ve gotten over the years, interacting with both leadership and staff, is they view the public as a complete and utter annoyance,” Nichols said. “They do not view their job as having any degree of accountability to the public.”

In written statements, APCD spokesperson Andrew Bare maintained that the division is “engaged in constant outreach with the public to inform and listen to them on important issues” and “(tries) to proactively reach out to the press and the public on matters of interest and importance.” But in the days prior to the publication of this story, the division continued a longstanding pattern of failing to provide timely, direct answers to written questions on a range of issues.

Air quality “is a very important issue of public concern, and it’s likely just to get worse,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. “And it’s something that the state should be open about. They should discuss these issues in an open way. It’s a huge, important issue, and there’s going to be more reporting that needs to be done, and journalists should have access to that information.”

Opaque decision-making
Colorado’s decades-long battle against ground-level ozone, a hazardous air pollutant linked to a wide variety of respiratory and cardiovascular health risks, has taken another turn for the worse in 2021. Many air monitoring stations across the Denver metro area have recorded their highest levels of ozone in years, and the 64 days of official ozone alerts issued by the APCD over the last several months are an all-time record, surpassing the previous high of 52.

Though the division’s air quality forecaster, Scott Landes, has made frequent media appearances throughout the summer, interviews with APCD leadership have been few and far between. Asked for recent examples of Kaufman speaking directly to reporters, the division pointed to an August story in The Denver Post, focused narrowly on the issue of private air-quality monitoring apps. The division also referred to Kaufman’s monthly director’s report at hearings of the Air Quality Control Commission — at which he faces questions from governor-appointed commissioners, not the media.

Advocates for open government and press freedom say that while no law requires public officials to speak to reporters, a refusal to participate in interviews isn’t consistent with broader principles of transparency and accountability.

“When you ask questions and you get answers from a public official, that can often lead to more questions,” said Roberts. “There are lots of circumstances where you don’t just want one answer to your question — you want to have a conversation, you want to dig deeper, you want to follow up. And that’s why it’s important.”

In communications to Newsline, the APCD claimed it does not have a standing policy to refuse interview requests and evaluates requests on a “case-by-case basis.” But the agency has denied dozens of such requests made by Newsline on a wide range of topics for more than a year.

“We continue to think that providing you with written info will be most helpful,” APCD spokesperson Andrew Bare wrote in a Sept. 9 email. “We want to make sure our responses are clear, well sourced, and documented.”

The division’s written responses, however, have often been anything but clear. In July, for example, Newsline repeatedly asked the APCD to answer a specific question relating to its abrupt withdrawal of the proposed Employee Traffic Reduction Program, a rule aimed at reducing greenhouse gas emissions from the transportation sector: What had changed between July 19, when the division announced it would merely “revise” and narrow the program, and July 21, when it moved to dismiss its rulemaking proposal entirely?

The APCD’s response, when it came four days later, was a non sequitur that simply rehashed its previous public statements: “We are going to pursue the Employee Traffic Reduction Program programmatically; we don’t think it’s necessary to pursue it formally through a rulemaking,” Bare wrote. “We’ve received a lot of feedback and are confident that Colorado businesses are committed to helping to achieve the program’s objectives voluntarily.”

It’s a pattern that has recurred throughout the Polis administration: Especially on matters of policymaking, the APCD — tasked with developing and enforcing regulations on a broad swath of high-stakes climate and energy issues — has consistently remained tight-lipped.

Despite weeks of written questions and follow-ups submitted as part of a 2020 Newsline investigation into the implementation of House Bill 19-1261, a landmark 2019 law targeting statewide cuts to greenhouse gas emissions, the division refused to clearly account for a critical series of decisions it made in late 2019 and early 2020, in which a broad “GHG Reduction Rulemaking” was drastically narrowed to regulate a single minor class of pollutants. That opaque decision-making process prompted multiple lawsuits from environmental groups and accusations that the division had purposefully misled the AQCC about its intended rulemaking schedule. The APCD and governor’s office also declined repeated interview requests for that story.

Reached by phone on September 9, Bare declined to answer questions about the division’s media policies, referring to a protocol through which any response would have to proceed. “I’m not authorized to talk to reporters on the record without going through a process,” he said.

Ian Dickson, a former CDPHE communications specialist, detailed that process in an interview. He began working at the department in late 2019, having left a similar position at the University of Alaska Fairbanks’ Earthquake Center — where, he said, experts and staff were accustomed to speaking freely with the press. When he joined CDPHE, he quickly learned that wasn’t the case there.

“It was pretty clear right away that it was highly regimented, multiple levels of approval,” Dickson said. A typical public statement drafted by a communications staffer often had to be cleared by a supervisor, a division manager, department leadership and at times even the governor’s office.

“Any time you put something through that many people, it loses meaning and comprehensibility with every edit,” Dickson said. And on many hot-button issues, the edits tended to follow a certain pattern, he added: “There’s a real culture within CDPHE of not pissing off regulated entities.”

Dickson, who was reassigned from the CDPHE’s water-quality division to the state’s COVID-19 response in early 2020, said that while the pandemic increased the strain on the department’s communications staff, issues with media requests plagued it long before then.

“Answering simple questions could take four or five days, and this was before COVID,” Dickson said. “So just being timely is a transparency problem. To me, the biggest issue with that process was the loss of meaning through levels of approval, and the long turnaround time.”

Dickson said that while the water-quality division often made staff available to reporters, in general, “SMEs” — subject matter experts — can be reluctant to give interviews. And in such cases, he noted, communications staff still asked reporters to submit lists of questions and worked to draft responses in advance.

Dickson said that there’s no doubt that the pandemic has continued to put a strain on the department’s ability to communicate effectively. “But also, with everything going on in air quality,” he added. “I’m sure they’re just afraid of an interview going wrong.”
‘They want to hide what they’re doing’

The APCD’s inaccessibility to the media is only one part of what former employees say is a broader lack of transparency at the division and CDPHE as a whole.

Dickson said that many of his biggest concerns center on the department’s handling of internal communications in relation to the Colorado Open Records Act, the state law governing public access to government records. Like many other state government agencies, the department’s email messages typically auto-delete after 90 days.

“What we were told internally about why we auto-delete is different from what the public is told,” he said. “The public is told it’s about managing storage, blah blah blah. I was told straight-up in my tech orientation that emails auto-delete, quote, ‘to get around CORA.’ They just came out and said that.”

“Email records retention in Colorado is a problem that needs to be addressed,” said Roberts of the Colorado FOIC, which has called on state lawmakers to reform and modernize CORA. “The records retention law doesn’t even define emails as a record that needs to be retained. … The policies, if you read through them, give a lot of discretion to the people in government to decide what to keep and how long to keep them.”

In a written statement, Bare declined to comment directly on Dickson’s claim, instead referring Newsline to the department’s records policies, which he wrote “are consistent with both the letter and the spirit of the Colorado Open Records Act.”
The Suncor oil refinery in Commerce City is one of Colorado’s largest sources of air pollution. (Chase Woodruff/Colorado Newsline)

Murtaugh, meanwhile, highlighted an internal policy shift made by the division’s inspection unit in 2013, changing the way it handled the field inspection reports of air pollution sources that were filed by staff.

All such inspection reports were previously made public shortly after they were filed, regardless of what they contained, Murtaugh said. But under the new policy, in cases where an inspector finds a source out of compliance and an enforcement action is initiated, the initial inspection report is withheld from the public until the enforcement matter is resolved.

“So the public has no way of knowing, because that initial document is considered confidential now,” Murtaugh said. “If you don’t make that inspection report public, the public has no way to know that there even is a problem, that anything is even going on.”

Another former APCD employee, who requested anonymity in order to avoid potential reprisals, confirmed that such a policy change had been made.

Bare confirmed in a statement that, “Generally speaking we do keep inspection reports confidential until an enforcement action is complete, because we take seriously our obligation to conduct these actions fairly.” In response to follow-up questions, he added: “Having checked with staff, we can’t say with 100% confidence what the policy on public release of inspection reports was before 2013.”

Concerns about the division’s policies aren’t simply limited to ex-employees. Murtaugh said that based on conversations with his former colleagues, he believes little has changed in the two years since he left the APCD. In a CDPHE employee survey on issues of equity, diversity and inclusion conducted earlier this year, a copy of the results of which was obtained by Newsline, many department employees identified transparency and accountability as top concerns.

“Many of our high level activities have been placed behind closed doors,” wrote one unidentified respondent. “For me, meaningful equity, diversity and inclusion means transparency and accessibility to decision making that affects me as an employee.”

Most notably, the APCD is currently the subject of multiple investigations relating to a March 2021 whistleblower complaint filed with the Environmental Protection Agency’s Office of Inspector General. Represented by attorneys with the group Public Employees for Environmental Responsibility, three whistleblowers within the APCD’s air-quality modeling unit allege a “pattern of unlawful conduct” by division leadership, including a policy prohibiting staff from modeling compliance with certain health-based pollution standards.

“This policy is … being implemented essentially in secret,” the complaint stated. “This policy was not brought to the Air Quality Control Commission, has not received public scrutiny, was implemented internally without notice, and as such violates Colorado’s Administrative Procedure Act.”

The whistleblower complaint, which prompted calls from environmental groups for Kaufman’s ouster, is among the many topics on which he and other state officials have consistently refused interviews. To Murtaugh, the division’s lack of media access, the whistleblowers’ allegations and his own experiences with how inspection reports were handled all reflect the same dynamic.

“It’s because they want to hide what they’re doing,” Murtaugh said. “Because they know they have something to hide.”

Read Part Two…