Suncor Energy’s Commerce City oil refinery repeatedly violated the conditions of the company’s federal pollution permits over the past five years and governmental attempts to regulate the refinery are failing people whose health is threatened by toxins being released into the air, a new lawsuit filed by three environmental groups alleges.
Lawyers with Earthjustice, representing GreenLatinos, 350 Colorado and the Sierra Club, filed the lawsuit in the U.S. District Court of Colorado on Tuesday morning.
Earthjustice and its clients documented at least 9,209 violations of the Clean Air Act by Suncor over the past five years, according to the complaint. The refinery exceeded the amount of emissions of hydrogen sulfide, sulfur dioxide, carbon monoxide, benzene, formaldehyde and particulate matter that it is allowed to release under its federal air-pollution permit.
The lawyers calculated the number of violations by pouring over Suncor’s monitoring reports and documents filed with the Colorado Department of Public Health and Environment.
In 2020, Suncor released approximately 20 tons of hazardous air pollutants, 500 tons of carbon monoxide, 50 tons of nitrogen oxides, 125 tons of particulate matter, 450 tons of volatile organic compounds, and 230 tons of sulfur dioxide into the air, the lawsuit alleges.
The ongoing pollution makes people in the surrounding neighborhoods sick with asthma, headaches and stomach ailments, the lawsuit said, and it interferes with their ability to exercise outdoors and let their children play in nearby parks.
The refinery, which processes about 98,000 barrels of crude oil per day and supplies about one-third of the gasoline used in Colorado, is located in a disproportionately impacted community, meaning the majority of residents are Latino, Black or Indigenous and fall into lower-income brackets that the rest of the state, but bear the burden of the pollution.
The refinery’s pollutants also contribute to the region’s smog, which develops on hot summer days when volatile organic compounds and nitrogen oxides react in sunlight.
Leithan Slade, a Suncor spokesman, on Tuesday said the company’s executives were reviewing the lawsuit.
The environmental groups sent a notice of intent to sue to the Environmental Protection Agency in early June and there was a 60-day waiting period before the lawsuit could be filed. During those 60 days, the EPA or the Colorado Department of Public Health and Environment could have filed a lawsuit to override the environmental groups’ intent.
The organizations are filing the lawsuit under a provision within federal law that allows citizens to step in to try to enforce environmental laws when they believe federal and state regulators are not doing enough.
Kevin Lynch, a law professor at the University of Denver’s Sturm College of Law who works with the university’s Environmental Law Clinic, said the citizen lawsuits give people in the community a seat at the table in enforcement and negotiations when settlements are involved.
“It’s not easy, which is why you may not see it all the time,” Lynch said.
Several years ago, Lynch participated in a similar lawsuit when DU’s Environmental Law Center represented Wild Earth Guardians in a lawsuit against Xcel Energy over the pollution coming from its Cherokee coal-fired power plant in Adams County. The suit was litigated for years before the two parties reached a settlement in which Xcel agreed to spend $447,000 to fund energy efficiency projects in the community, including installing solar panels on a recreation center.
“What you want is something that’s going to improve the lives of the community,” Lynch said. “A seat at the negotiation table is a really valuable benefit to the communities and why they would want to get involved in litigation.”
People who live in north Denver and Commerce City, along with environmentalists, have been critical in recent years of the state’s enforcement of Suncor. They say recent settlements have not been harsh enough to force Suncor to comply and the settlements benefit the company more than the community..
In February, the state health department announced a $10.5 million settlement with Suncor — the largest in state history — for repeated air permit violations between July 2019 and June 2021. Under the agreement, Suncor paid $2.5 million to the state and agreed to spend $8 million to repair its power supply system, which state regulators believe caused multiple violations. However, people in the community were critical because Suncor was allowed to spend the bulk of the money on something it already should have fixed.
In September, the EPA signed a consent agreement with Suncor after the refinery sold dirty fuel to Colorado gas stations. Suncor paid a $160,000 penalty for the violations, plus an additional $600,000 to fund a program to buy electric lawn equipment for local governments, schools and residents in Commerce City and north Denver.
In 2020, the company and the state reached a $9 million settlement over violations that occurred during the previous three years.
The Canadian company remains under investigation for a December 2022 shutdown that released excessive amounts of pollutants into the air and for a string of exceedances in December and January. Under the Clean Air Act, a judge could impose a maximum fine of $121,000 per day per violation.
In July, the EPA and the state health department served a notice of violation to Suncor, the first step in an enforcement action after both agencies discovered violations on the amount of benzene and other hazardous air pollutants.
Colorado Department of Public Health and Environment spokeswoman Kate Malloy declined to comment on the lawsuit, saying the agency does not talk about litigation.
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