August 13 Colorado Energy Roundup: EPA dumps on Colorado with Clean Power Plan, Ozone rule–then releases a toxic mess!

August 13, 2015 by michael · Comments Off
Filed under: CDPHE, Environmental Protection Agency, Legal, Legislation, PUC 

To say the Environmental Protection Agency has been in the news lately would be an understatement. Just this time last week, less than 24 hours after triggering a spill of toxic sludge including heavy metals into the Animas River in SW Colorado, most folks were unaware of the situation due to a lack of EPA communication–but more on that in a minute.

They were too busy focused on the new carbon-cutting Clean Power Plan rules being dumped on the state by the regulatory side of the agency.

Here’s a recap of the CPP, as Independence Institute’s Mike Krause can explain:

Or more in depth from former Colorado Public Utilities Commission chair, Ray Gifford:

Last week the EPA finalized the rule, as we told you in last week’s edition of the Energy Roundup, with the Colorado Attorney General Cynthia Coffman considering joining a multi-state lawsuit challenging the CPP’s legality, and legislators possibly returning to some form of transparency or oversight for the CPP state implementation plan, now with pushed back deadlines (and therefore more sessions to seek legislation).

The Independence Institute has a CPP backgrounder that provides further details.

EPA Administrator Gina McCarthy discussed the launch of the CPP in a video on Tuesday.


Hot on the heels of the CPP, the EPA expects to finalize rules for ground-level ozone some time in October. But large and small businesses alike, from the National Association of Manufacturers to Colorado Association of Commerce and Industry, joined the Center for Regulatory Solutions (CRS), a project of the Small Business Entrepreneurship Council (SBE Council), in a press call yesterday to announce a new study that looked at the effects of the ozone rule on Colorado. The sheer volume of bipartisan commentary opposing the proposed ozone reduction is particularly eye-opening in these normally contentious times, and shows a break with the EPA on new regulations–the ozone rule might be a step too far following so closely behind the CPP:

“This ozone proposal gives the federal government far too much control over state and local planning decisions that shape the Colorado economy,” said Karen Kerrigan, President of the Small Business and Entrepreneurship Council. “Colorado is one of the biggest success stories of the federal Clean Air Act, but now the EPA is moving the goalposts. The standard is so strict – approaching background levels in some areas – that the vast majority of the state economy will be found in violation immediately. Violation of the ozone standard gives EPA the authority to effectively rewrite state and local environmental laws the way Washington wants.”

“No wonder this EPA proposal has been met with such strong and diverse opposition from across Colorado’s political spectrum. Washington officials, all the way up to President Obama himself, should listen to the voices coming from Colorado and across the country and once again give the current standard a chance to work.”

A sample of the key findings:

By lowering the National Ambient Air Quality Standard from 75 parts per billion (ppb) into the 65 to 70 ppb range, EPA would force, with a single action, at least 15 counties in Colorado to be in violation of federal law. These happen to be some of Colorado’s most populated counties, concentrated in the Denver metropolitan area, but a number of counties on the Western Slope may be dragged into non-attainment as well. Together, these 15 counties are responsible for 89 percent of Colorado’s economy and 85 percent of state employment. (Page 3)

Under the Clean Air Act, cities and counties that do not meet the NAAQS for ozone are placed into “non-attainment,” or violation of federal environmental standards. Once in non-attainment, local and state officials must answer to the federal government for permitting and planning decisions that could impact ozone levels. State officials are required to develop an “implementation plan” that imposes new restrictions across the economy, especially the transportation, construction and energy industries. The EPA has veto power over these implementation plans. States that refuse to comply, or have their implementation plans rejected, face regulatory and financial sanctions imposed on them directly from the federal government. (Page 19)

The report, entitled “Slamming the Brakes: How Washington’s Ozone Plan Will Hurt the Colorado Economy and Make Traffic Worse” has revealed that opposition to the ozone rule with a river of comments from Colorado state and local officials.

Here’s a sample of the bipartisan criticism:

State Senator Cheri Jahn (D):

“Coloradans care deeply about the environment. After the great progress we have made on air quality, our state should be praised, not punished. This ozone proposal out of Washington, D.C. scares my constituents, because it could hamstring our regional economy and cost jobs.

We have worked so hard to bring manufacturing jobs to Colorado, and by moving the goal posts on ozone, the EPA is going to chase manufacturing jobs away from our state. This plan could also gum up the approval process for badly needed road and transportation investments, which will make our traffic worse, and make it much harder to attract new industries, grow existing businesses, and strengthen Colorado’s middle class.”

State Senator Ellen Roberts (R):

“If the EPA carries out this ozone plan, Western Colorado will be placed at a terrible economic disadvantage. We have worked hard to responsibly care for our environment even as we grow and diversify our economy.

Tightening the ozone standard any further just does not make sense when the existing standard, which is less than 10 years old, is working. I urge the EPA to reconsider this plan and leave the 2008 standard in place.”

State Senator Jerry Sonnenberg (R):

“The EPA’s proposed new standards would drive small family farms such as mine out of business. We have never been able to afford new equipment and if the only way to comply with this new standard is with new equipment, my family would have to leave agriculture. Even if we could meet the standards with expensive upgrades to our machinery, the increased costs to finance those upgrades, as well as the fuel and the fertilizer, takes a marginally profitable farm and turns it into one that can’t make its payments.

Unless you want to see the family farm only as a memory, one must make the EPA understand that their new standards will have a devastating effect on rural America and the agriculture economy.”

Routt County Commissioners Douglas Monger (D), Cari Hermacinski (R), Timothy Corrigan (D):

“We set and meet high standards because we know it is good for our people and our state. So you might expect us to support the Environmental Protection Agency’s proposed standards for ground-level ozone. Those standards, however, are too overbearing and are meeting with a lot of resistance even in places where air quality regulations are welcome…

These standards must not be implemented. If they go forward as proposed, they will do more than put good people out of work and cause hardships for communities that have done so much to protect the land, air and water around them. They will turn away a lot of people who have been receptive to the idea that government can be trusted to do environmental regulation the right way.”

NAM also released a video ad buy, to be seen across Colorado over the next few days:


Only the sheer quantity of toxic material–some 3 million or so gallons of Sunny-D colored water laden with heavy metals–comes close to the media coverage of one of the biggest environmental stories in recent Colorado history.

Most of the stories have been widely publicized and shared, so here is a quick look at this EPA-related (not strictly energy-related) blockbuster news blitz from just the past two days alone, in reverse chronological order (most recent first):

EPA Contractor Behind CO Mine Spill Got $381 Million From Taxpayers:

The EPA is not letting the public know the names of the government contractors responsible for spilling three million gallons of toxic wastewater from a southern Colorado mine. The agency is holding the information close — so close, the Colorado attorney general’s office doesn’t have it.

A spokesman with the Colorado attorney general’s office told The Daily Caller News Foundation the EPA had not disclosed the names of the federal contractor that caused millions of gallons of wastewater into the Animas River — leaked contaminants include zinc, copper, cadmium, iron, lead and aluminum.

EPA Withholding Mine Spill Info From State AGs:

The EPA is not letting the public know the names of the government contractors responsible for spilling three million gallons of toxic wastewater from a southern Colorado mine. The agency is holding the information close — so close, the Colorado attorney general’s office doesn’t have it.

A spokesman with the Colorado attorney general’s office told The Daily Caller News Foundation the EPA had not disclosed the names of the federal contractor that caused millions of gallons of wastewater into the Animas River — leaked contaminants include zinc, copper, cadmium, iron, lead and aluminum.

Animas River outfitters shut as plume passes, but say they’ll endure:

“Very difficult,” said Alex Mickel, who has turned hundreds of customers away from his Mild to Wild Rafting each day since the Environmental Protection Agency accidentally unleashed a 3 million gallon torrent of toxic mine water into the headwaters of the Animas last week.

“We are anticipating around $150,000 to $200,000 in lost revenue,” Mickel said. “But from an emotional standpoint, it’s difficult to see a beautiful river damaged in this way.”

Animas River spill leaves Colorado, neighbors weighing EPA lawsuit:

The attorneys general of Colorado, New Mexico and Utah said Wednesday that a lawsuit against the Environmental Protection Agency is an option in the wake of a massive mine wastewater spill caused by the agency.

All three, however, agreed that it’s too early to say if they will sue.

“I would hope that it would not be necessary,” Colorado’s Cynthia Coffman, a Republican, said of a suit in an interview with The Denver Post. “The statements by the (EPA’s administrator) indicate the EPA is accepting responsibility for the accident. The question is: What does that mean? What does accepting responsibility mean?”

Hickenlooper drinks Animas River water to make a point:

Gov. John Hickenlooper on Tuesday drank a hearty gulp of the Animas River in an effort to highlight that the river has returned to pre-contamination conditions.

The governor and his health department director, however, cautioned that citizens should not be freely drinking from the river, because the water was unsafe for consumption even before the Environmental Protection Agency released an estimated 3 million gallons of mining wastewater into it.

But the drinking exercise indicated that state officials are more than confident that the river does not pose a toxic risk to humans, as they publicly stated on Tuesday.

“Am I willing to go out there and demonstrate that we’re back to normal?” Hickenlooper asked out loud after The Durango Herald raised the idea with the governor. “Certainly. I’m happy to do that. I’m dead serious.”

Navajos Distrustful OF EPA Promises On Toxic Mine Spill:

Navajo Nation is furious with the EPA, not just because the agency accidentally spilled three million gallons of toxic mine waste in the region, but because the agency is allegedly trying to get tribal members to waive rights to future compensation for damages incurred by the toxic spill.

“The federal government is asking our people to waive their future rights because they know without the waiver they will be paying millions to our people,” Navajo President Russell Begaye told “This is simple; the feds are protecting themselves at the expense of the Navajo people and it is outrageous.”

Congressmen: EPA Must Answer For Spilling Toxic Waste:

Republican congressmen are calling for the EPA to be held accountable for spilling 3 million gallons of toxic mine wastewater into the Animas River last week, especially since the agency is a government entity and won’t be punished to the same degree a private company would for spilling waste.

“The EPA must be held accountable for its actions,” Rep. Lamar Smith told The Daily Caller News Foundation in an emailed statement. “If a private company caused such a disaster, it would be hit with substantial penalties and would be required to pay for cleanup.”

“In this case, it will be the taxpayers who foot the bill,” the Texas Republican said. “The EPA has an obligation to the families and businesses that have been devastated by this spill.”

Screen Shot 2015-08-12 at 9.51.55 PM

From the Denver Post house editorial:

The U.S. Environmental Protection Agency’s clumsy, tone-deaf response to the toxic disaster on the Animas River was an embarrassment even to the EPA. One agency official managed to admit the reaction was “cavalier,” but that’s putting a mild face on it.

Top EPA official takes responsibility for Colorado mine spill:

EPA Administrator Gina McCarthy said Tuesday in Washington, D.C., that she takes full responsibility for the spill, which she said “pains me to no end.” She said the agency is working around the clock to assess the environmental impact.

Hickenlooper sees a silver lining:

“Colorado’s governor thinks a mine spill accidentally triggered by an EPA crew will move the state and federal government to more aggressively tackle the “legacy of pollution” left by mining in the West.

Gov. John Hickenlooper said Tuesday that much of the wastewater has been plugged up, but the state and the Environmental Protection Agency need to speed up work to identify the most dangerous areas and clean them up.

The former geologist says that if there’s a “silver lining” to the disaster, it will be a new relationship between the state and the EPA to solve the problem.”

Navajo Nation Mourning, Pleading for Help After Toxic Mine Spill Contaminates Rivers

John Hickenlooper calls Animas River disaster “unacceptable”:

Gov. John Hickenlooper on Tuesday stood on the banks of the Animas River and said last week’s spill of 3 million gallons of contaminated mining waste water into its flow was “in every sense, unacceptable.”

He said the long-term effects of the spill, which happened as the Environmental Protection Agency was investigating the contaminated mine, are unknown.

The governor said he has spoken with the head of the EPA, Gina McCarthy, and described her as “committed” and “firm” in her resolve to respond to the spill. McCarthy will be in Durango and New Mexico on Wednesday, she said Tuesday on Twitter.

“I think we share the anger that something like this could happen,” Hickenlooper said. “But I think that said, our primary role is now: that’s behind us and how are we going to move forward.”

EPA Shrugs after Spilling Millions of Gallons of Toxic Water into a River in the Mountain States

EPA Chief Apologizes as Anger Mounts:

Environmental Protection Agency Administrator Gina McCarthy apologized Tuesday for a mine spill in Colorado that her agency caused last week and planned to travel to the area Wednesday, amid increasing criticism from lawmakers about the EPA’s response.

Ms. McCarthy said at a news conference in Washington that she was still learning about what happened, responding to a question about whether the EPA was reviewing changes in how it cleans up old mines. “I don’t have a complete understanding of anything that went on in there,” she said. “If there is something that went wrong, we want to make sure it never goes wrong again.”

EPA won’t face fines for polluting rivers with orange muck:

Unlike BP, which was fined $5.5 billion for the 2010 Deepwater Horizon disaster, the EPA will pay nothing in fines for unleashing the Animas River spill.

“Sovereign immunity. The government doesn’t fine itself,” said Thomas L. Sansonetti, former assistant attorney general for the Justice Department’s division of environment and natural resources.

And of course, some folks don’t think the EPA should be blamed . . .

August 6 Colorado Energy Roundup: Clean Power Plan Edition

Colorado’s expected targets on carbon reduction from the finalized Clean Power Plan unveiled Monday:

Colorado’s 2030 goal of a 28 percent reduction in overall carbon dioxide emissions — or a 40 percent reduction in the pounds of CO2 emitted per megawatt hour of electricity generated — was set using a 2012 benchmark.

“Having them stick to that baseline year of 2012, we don’t necessarily get credit for being early thinkers and early movers,” said Dr. Larry Wolk, executive director and chief medical officer of the Colorado Department of Public Health and Environment.

Colorado’s Attorney General Cynthia Coffman has vowed to review the new rules and could consider joining a multi-state lawsuit against the Clean Power Plan:

Attorney General Cynthia Coffman said the plan “raises significant concerns for Colorado” and that she’s considering joining other states in a legal challenge.

Citing concerns about potential job losses and an unrealistic set of goals and timelines, Coffman said in an e-mail she will ” carefully review the EPA’s plan and evaluate its long term consequences for our state.”

“But as I put the best interests of Colorado first, it may become necessary to join other states in challenging President Obama’s authority under the Clean Air Act.”

It is not clear at this time how long Coffman will take to render a decision on whether or not to join that lawsuit, but the Colorado Department of Public Health and Environment’s Dr. Wolk said that the agency is pushing forward:

“It is the right thing to do,” Wolk said.

If there’s a legal challenge to be had related to EPA authority, that’s a matter specific to the attorney general, he said.

“But it is not something we would use to deter our efforts, which have been underway for several years,” Wolk said.

Governor John Hickenlooper’s office told the Denver Post, “We respect the due diligence of the attorney general in reviewing the plan and will watch the next steps closely.”

Hickenlooper has already made it clear his administration welcomed the Clean Power Plan, and would not join an effort to thwart that plan at the state level.

The final rule moves the deadline for state implementation plans back, and the CDPHE has given an initial nod to allowing the legislature to vote on the agency’s plan:

The final state plan will go to the legislature for approval before submission to the EPA. An initial state plan will be due September 2016 with an option for states to request a two-year extension to September 2018 for submission of the final plan.

How much input the Colorado legislature will have remains to be seen due to the possibility of legislation in 2016 and even 2017. Colorado may file for an extension, giving the legislators additional opportunities to consider enabling legislation, procedural requirements such as a stronger or even mandatory role for the Public Utilities Commission, or other variations on how Colorado submits its CPP SIP. The 2015 session saw SB 258, the Electric Consumers’ Protection Act, pass out of the Senate in bipartisan fashion but ultimately die in Democratically-controlled House. The bill would have sought transparency for the CPP state plan by requiring PUC hearings and deliberation, as well as an up or down vote by the Colorado legislature as a whole.

The Independence Institute published a backgrounder in April, during the rule finalization process, that took a look at possible economic and legal implications of the CPP:

– Will require a new regulatory regime, and holistically seeks to remake the nation’s energy policy;
– Will incur massive costs;
– Will greatly affect energy reliability across the country;
– Is likely illegal; and
–Won’t have any measurable impact on global CO2 emissions.

A quick look at Colorado’s CO2 emission levels from the 2012 baseline show a 40.5 percent reduction in carbon by 2030, from 1973 pounds per megawatt hour down to 1174. Interim goals would reach approximately 31 percent reduction between 2022 and 2029, with states receiving some flexibility on reaching the step reductions. The EPA estimates that by 2020, Colorado would see a 14 percent reduction–without any Clean Power Plan guidelines.

States’ goals fall in a narrower band, reflecting a more consistent approach among sources and states.

At final, all state goals fall in a range between 771 pounds per megawatt-hour (states that have only natural gas plants) to 1,305 pounds per megawatt-hour (states that only have coal/oil plants). A state’s goal is based on how many of each of the two types of plants are in the state.

The goals are much closer together than at proposal. Compared to proposal, the highest (least stringent) goals got tighter, and the lowest (most stringent) goals got looser.

o Colorado’s 2030 goal is 1,174 pounds per megawatt-hour. That’s in the middle of this range, meaning Colorado has one of the moderate state goals, compared to other state goals in the final Clean Power Plan.

o Colorado’s step 1 interim goal of 1,476 pounds per megawatt-hour reflects changes EPA made to provide a smoother glide path and less of a “cliff” at the beginning of the program.

The 2012 baseline for Colorado was adjusted to be more representative, based on information that came in during the comment period.

Screen Shot 2015-08-06 at 12.58.53 AM

The full text of the EPA’s outline for Colorado is here:

Colorado Clean Power Plan Goals


So why can the EPA project an additional 14 percent reduction of carbon emissions by 2020 without the Clean Power Plan?

Energy In Depth has the details, via the Energy Information Administration:

According to a report released today by the Energy Information Administration (EIA), monthly power sector carbon emissions reached a 27-year low in April of 2015. In that same month, natural gas was, for the first time, the leading source of American electricity. As the EIA puts it:

“The electric power sector emitted 128 million metric tons of carbon dioxide (MMmt CO2) in April 2015, the lowest for any month since April 1988…Comparing April 1988 to April 2015 (27 years), natural gas consumption in the sector more than tripled.” (emphasis added)


EID concludes, “As the EIA’s report clearly shows, these environmental benefits are due in large part to an American abundance of safely produced, clean-burning natural gas.” EPA’s administrator Gina McCarthy has repeatedly pointed to natural gas as a “bridge” or key component in reducing carbon.

But natural gas as a “building block” for CPP compliance is threatened by the next EPA rule to come down the regulatory turnpike, the ground-level ozone rule to be finalized in October, according to the Institute for Energy Research.


Studies have considered the cost to the economy and the toll in human terms due to job loss:

President Barack Obama’s plan targeting coal-burning power plants will cost a quarter of a million jobs and shrink the coal industry by nearly half, according to a new report by the American Action Forum (AAF).

The president released final regulations from the Environmental Protection Agency (EPA) on Monday, which require every state to meet strict emission standards for coal-burning power plants in the next 15 years.

The so-called “Clean Power Plan” will cost the industry $8.4 billion, nearly 10 times more expensive than the most burdensome regulation released this year, according to AAF, a center-right think tank led by Douglas Holtz-Eakin, former director of the Congressional Budget Office.

“This week, the Environmental Protection Agency (EPA) released its final greenhouse gas (GHG) standards for existing power plants,” according to the report, authored by AAF’s director of regulatory policy Sam Batkins. “The final plan will shutter 66 power plants and eliminate 125,800 jobs in the coal industry.”

Job loss will be substantial due to the shuttering of coal-fired power plants, including those in Colorado.

It will also likely be heavily localized, as the tenuous situation in northwest Colorado facing the Colowyo Mine and Craig’s coal-fired plant illustrate–and this comes before the state considers how to implement the Clean Power Plan.

Moffat County, where both the mine and power plant reside, would see just a few hundred jobs on the chopping block, but this would devastate the area, as a recent video from Institute for Energy Research showed:


Reaction to the rule varied across the spectrum, and the Denver Business Journal gathered a handful of the more pointed statements from both sides:

Joel Serface, managing director of Brightman Energy, a renewable energy development company.

“The Clean Power Plan is a huge opportunity for Colorado’s economy. By tackling the rising economic costs of climate change, we can modernize our energy infrastructure, stimulate innovation and help create thousands of good, new Colorado jobs in high-growth sectors like wind and solar.”

State Sen. John B. Cooke (R-Weld County):

“The Governor needs to commit himself to a true public process, including a rigorous review by the people’s representatives in the Colorado General Assembly, before giving a green light to Colorado’s implementation of this new federal mandate. These rules are being challenged in federal court by sixteen states, and I hope that Colorado’s Attorney General will join that lawsuit now that the EPA rules are final. The fact is, the Clean Air Act passed by Congress does not authorize these costly dictates, and there is a good chance the US Supreme Court will block these rules for that reason.”

Will Lawmakers Stop the AQCC’s (almost certainly) Illegal Regional Haze Plan?

March 29, 2011 by williamyeatman · 1 Comment
Filed under: CDPHE 

I’ve written before about the Air Quality Control Commission’s outrageous Regional Haze Implementation Plan. In particular, I objected to the plan’s treatment of two small coal fired power plants near Steamboat Springs, Hayden 1 and Hayden 2, because it mandates controls that are at least $100 million more expensive than what is required by the Environmental Protection Agency.

(For a Regional Haze primer, click here. In a nutshell, Regional Haze is unique among the provisions of the Clean Air Act for two reasons: (1) It is an aesthetic regulation meant to improve visibility at national parks, whereas other Clean Air Act provisions are meant to protect public health; and (2) it affords states—and not the EPA—primary authority, especially for power plants smaller than 750 megawatts.)

Back then, when I wrote those posts, I thought that the AQCC’s Hayden controls were egregious; however, I’ve since learned that they are almost certainly illegal. Under Colorado law (§25-7-105.1(1) C.R.S.), a State Implementation Plan cannot impose emissions controls that are more stringent than what the EPA requires. For Hayden 1 and Hayden 2, the AQCC mandated nitrogen oxides controls, known as Selective Catalytic Reduction. But in its Regional Haze guidance document, the EPA states, “We have not determined that Selective Catalytic Reduction is generally cost-effective” for smaller power plants (less than 750 megawatts capacity) like Hayden 1 and Hayden 2. (This quote is in the first paragraph of the first column of page 39136 of the link.)

To recap: (1) Colorado law forbids emissions controls more stringent than what the EPA requires; (2) the Regional Haze State Implementation Plan mandates ultra-expensive Selective Catalytic Reduction for Hayden 1 and 2 power plants; (3) the EPA says that Selective Catalytic Reduction controls are not cost effective for small power plants like Hayden 1 and 2; (4) therefore, the Regional Haze State Implementation Plan is likely in violation of Colorado statute.

The AQCC submitted this (likely illegal) Regional Haze State Implementation Plan in mid-January. Colorado statute allows lawmakers to request a review of any revision to the State Implementation Plan by the bi-cameral, bi-partisan Legislative Council. On February 11 Reps. Jim Kerr and Marsha Looper made such a request; on February 14, they were joined by Sens. Scott Renfroe, Kevin Lundberg, Shawn Mitchell, Keith King, Jean White, Ted Harvey, Mark Scheffel, and Kent Lambert. All Coloradans owe thanks to these legislators.

Last Friday, the Legislative Council held a hearing on the AQCC’s Regional Haze State Implementation Plan. The Council allowed lawmakers until April 4 to submit legislation to revise the Plan; if no such legislation is put forward, the Plan will be sent to the Environmental Protection Agency for final approval.  The clock is ticking for a lawmaker to bring the Regional Haze State Implementation Plan in line with Colorado law, by forbidding ultra-expensive controls at Hayden 1 and 2. Otherwise, Xcel ratepayers will be on the hook for at least $100 million in unnecessary costs.

William Yeatman is an energy policy analyst at the Competitive Enterprise Institute.

2010 Ozone Data: More Evidence That CDPHE Is Cooking the Books

December 12, 2010 by williamyeatman · 1 Comment
Filed under: Archive, CDPHE, HB 1365 

Twice I’ve provided evidence that the Colorado Department of Public Health and Energy (CDPHE) has inflated projections of ozone ambient air concentrations (see here and here).

Those were critiques of ozone projections. This year is the first year that we have a data set against which to judge the accuracy of CDPHE ozone modeling during the New Energy Economy era. Unfortunately for Coloradans, the results are even worse than I’d feared. See for yourself:

2010 Ozone Air Concentrations: CDPHE vs. Reality
Monitoring Station

CDPHE Projections (Ozone ppb)

Actual Projections (Ozone ppb)




S. Boulder Creek



Chatfield State Park









Rocky Flats North






Fort Collins West



Greely-Weld Tower



Read more

Clearing the Air on Carbon Monoxide: Fatal Scientific Flaws in the EPA Crackdown on Denver and Other

May 1, 1988 by admin · Comments Off
Filed under: Archive 

May 1, 1988

Issue Paper


By C. Edwin Baker, Gordon Swanby

Executive Summary:

  • Environmental analysts Baker and Swanby contend that the EPA is strong-arming Denver and scores of other cities with unduly strict control measures against carbon monoxide levels that are really a nonproblem in health terms.
  • Maximum allowable CO levels are set far lower than technical studies can justify, providing an excessive and burdensome margin of safety. Colorado uses a CO monitoring system that exaggerates actual hazards and violates EPA guidelines.
  • The authors find no scientific warrant for frightening the public into expensive and disruptive lifestyle changes. The regulations seem designed to satisfy abstractions and centralize power, not to protect real people from real risks.
  • EPA should raise the violation standard to a scientifically valid level and trigger it after the fifth bad day rather than the first. Also, since cleaner cars seem to have accounted for most of the recent CO improvement, other control measures should be suspended for a year to confirn whether this is so.
  • Rebuttals by the EPA Regional Administrator and the Metro Air Quality Council are in the Appendices I and II.

Introduction: Myth and Reality

Denver is one of 59 U.S. cities that are under scrutiny by the U.S. Environmental Protection Agency, facing economic sanctions in the form of withheld federal highway funds and pollution control grants. This action is being contemplated by the government because these cities have not achieved compliance with EPAs ambient air quality standard for carbon monoxide (CO), as mandated by the Clean Air Act.

This standard was to have been met by the end of 1987, but Congress decided to allow an additional eight months so that appropriate priate measures for dealing with non compliant cities could be strategized. In the interim, EPA has attempted to bring a measure of sanity to the matter by suggesting only those cities that have not made a sincere effort to comply with the standards should be penalized.

Further, they recommended that if a non-compliant city shows minimal, but steady, improvement in air quality, (e.g., three percent per year), then that city should be deemed to be making satisfactory progress toward complying with the standard.

But on the other hand, it is the very stringent EPA CO standard that has created the problem in the first place. Misleadingly described as health-based, the standard turns out to have been set by such purist criteria, with associated non-representative monitoring requirements, that it will be wrenchingly difficult, if not impossible for most cities ever to come into compliance.

The threat of economic sanctions by the EPA has brought about a spate of CO control strategies in Denver during the past few years. The associated uproar has created the erroneous notion with the public that our air quality is worse now than ever. The truth is that Denvers CO levels have been declining steadily over the past several years, and are continuing to improve. In that sense, Denvers air is cleaner and safer now than at any time since the agencies began keeping air quality records.

The reason Denver is said to have a CO problem is that the overly stringent ambient standard has not been met, and projections are grim for meeting the standard any time soon. In analyzing this problem, the important questions are (1) what is the standard, (2) what is the basis for the standard, (3) what are the health consequences of exceeding the standard, (4) how is ambient CO measured, and (5) how is compliance determined?

This issue paper will examine each question in turn, demonstrating why the authors believe the standard has a faulty scientific basis, the monitoring programs are flawed, and the compliance policy is unjustified.

Carbon Monoxide: Definite Dangers. Debatable Response

Carbon monoxide is an odorless, colorless gas present to some degree in the atmosphere (usually less than 1 ppm) and in buildings at all times. Most CO is the result of incomplete combustion of organic (carbon-containing) materials, which if completely oxidized would yield carbon dioxide and water.

Carbon monoxide is produced when combustion processes are not highly efficient or when there is not enough oxygen present to combine with the available carbon atoms. Carbon monoxide in the atmosphere cannot be seen, and therefore does not contribute to visible pollution.

Inhalation of CO is considered a health issue because it competes with oxygen in the blood for attachment to the hemoglobin molecule. Obviously, if the inhaled concentration of CO is extremely high, considering CO has an affinity for hemoglobin at least 200 times that of oxygen, death can result in a very short time. However, concentrations of around 4000 ppm are required for the manifestation of lethal effects.

It is this characteristic of CO that causes the gas to be referred to by the media as “poisonous” or “deadly” when they report on pollution episodes or CO control measures. However, it must be emphasized that atmospheric concentrations of CO experienced today in Denver, or in any other U. S. city (less than 20 ppm), in no way approach deadly or poisonous proportions.

Rather, the public and political concern about CO pollution results from heavy media coverage of the failure of numerous cities to meet a very stringent air quality standard.

The EPA ambient standards for carbon monoxide are 35 ppm one-hour average and 9 ppm eight-hour average; the eight-hour standard is computed on a “moving average” basis, and is not to be exceeded more than once per year. Denver no longer has a problem meeting the onehour standard, and so this paper will address only the eight-hour standard.

Carbon monoxide is monitored at several locations in a metropolitan area, representing urban, middle-scale and neighborhood areas (Denvers monitoring scheme is presented in Figure 1). The monitors are located so as to measure worstcase exposures because EPA intends for the maximally exposed and most sensitive individuals to be protected by the ambient standards. The EPA does not allow averaging of measured values from the several monitors in an area, nor do they allow averaging of data from any one monitor beyond the eight-hour limit.

On an annual or seasonal basis, a city may be below the standard, and theoretically in compliance, but wintertime temperature inversions and the proximity of passing automobiles to CO sensors sometimes make it impossible for every monitor to remain below the standard. However, it is interesting to note, particularly in the case of Denver, that during even the worst temperature inversions, some of the area monitors do remain below the standard. Tn fact, some monitors never register violations.

It only requires one monitor registering an exceedance of the standard, and then that same or a different monitor registering another exceedance on a different day during the same calendar year, to result in a state of noncompliance with the standard.

The amount by which the standard is exceeded is of no consequence to the EPA for compliance purposes. A city is in as much trouble with the EPA for 10 ppm as it is for 20 ppm. Its pass or fail–no middle ground–even though most cities today are not exceeding the standard very often nor by large increments.

From a health standpoint, it is not the concentration of CO in the air that is important, but rather how much CO is inhaled and then absorbed by the blood stream. When CO combines with hemogloblin molecules in the blood, the resultant chemical substance is called carboxyhemoglobin (COHb). The risk to health generally is expressed as the percentage of COHb in the blood.

There is a lack of general agreement among the scientific community regarding the relationship between concentration of CO in ambient air and the resulting percentage of COHb in the blood. Neither is there consensus regarding the lowest percentage of COHb that represents a threat to human health. However, there is agreement that healthy persons can tolerate higher percentages of COHb in the bloodstream than weaker individuals (e.g., those with cardiac or pulmonary diseases).


Air Pollution Monitoring Stations in the Denver, Colorado Metropolitan Area

1. WELBY 78th & Steele
2. HIGHLANDS S. University & County Line Road
3. ARVADA 57th & Garrison
4. CARRIAGE 23rd & Julian
5. NATIONAL JEWISH HOSPITAL Colfax & Colorado Blvd.
6. CAMP 21st & Broadway
7. AURORA 50 S. Peoria
8. BOULDER 2320 Marine Street

NOTE: Since this map was prepared, the Aurora station has been relocated to Englewood, near the intersection of S. Huron Street and Eastman Avenue, north of Cinderella City Mall.

SOURCE: “PSI”, a pamphlet published by the Colorado Department of Health, Air Pollution Control Division, January 1987.

Since the EPA is charged under the Clean Air Act to protect all individuals in society, air quality standards are set conservatively to assure a corresponding level of protection. While this goal is a noble one, it will become apparent later in this paper that ambient levels of carbon monoxide found in the air of Denver and other U. S. cities today, having improved drastically over the past decade, do not represent a threat to the health of normal individuals, and only theoretically to the health of weaker persons.

Why the Standard is Scientifically Suspect

The Occupational Safety and Health Administration has set a workplace CO standard of 50 ppm ,(l) averaged over eight hours; this standard was set with a margin of safety. The American Conference of Governmental Industrial hygienists recommends a short-term exposure limit (SThL) for CO of 400 ppm(2) Table 1 summarizes the gaping disparities between the CO standards of other entities and EPAs 9 ppm standard.

The EPA 9 ppm standard dates back to the early 1970s, prior to the congressional mandate to establish health-based standards. Nevertheless, at that time, EPA took a health-based approach to defining and setting the standard. As they are still practicing today, the agency collected and reviewed all of the scientific literature on CO effects, and then selected the data base that reflected the most cautious view (which incidentally cannot be corroborated by the vast majority of published research on the subject).

Interestingly, however, the studies forming the basis for the original standard-setting subsequently were discredited, (3) and the EPA was forced to search for further justification, or else risk losing the standard to a higher value.

The EPA did, in fact, come up with another group of studies that helped them “back into” the extant standard. These studies were performed and published by Dr. Wilbert Aronow, who coincidentally also provided drug testing information used by the Food and Drug Administration (FDA).

In 1983, the FDA found serious technical difficulties with Dr. Aronows work, leading to the rejection of his drug study data. Upon further investigation, the EPA also found problems with Aronows CO studies, and once again found themselves in the position of having to discard the technical basis for the 9 ppm.

But not to worry–enter the Anderson study. E. W. Anderson et al. published a paper in 1973 that demonstrated a CO-related “health effect” experienced by persons suffering from angina pectoris.(4) By studying the length of time to onset of chest pain in these patients, Anderson concluded that inhalation of CO for four hours prior to exercise on a treadmill decreased the time to onset of chest pain by approximately 20%.


Comparison of EPA Carbon Monoxide Standards with Standards and Criteria Published by Other Authorities

(all values in ppm)









OSHA(c )








DOP (g)







(a) Short-term exposure limit (usually 15 minutes)

(b) Since the EPA-determined threshold of health effects is 18 ppm, the 9 ppm standard represents a 100% margin of safety.

(c) Occupational Safety and Health Administration

(d) National Institute of Occupational Safety and Health

(e) American Conference of Governmental Industrial Hygienists

(f) 25 ppm recommended for persons with cardiac or pulmonary disease

(g) Department of Transportation

(h) N. Irving Sax: “Dangerous Properties of Industrial Materials”, sixth edition

Notwithstanding it is stretching definitions to classify premature onset of chest pain during exercise as a “health effect”, several serious problems have surfaced regarding the Anderson study, which now provides the sole technical basis for the 9 ppm standard.

Anderson used only 10 subjects in his study, and these persons did not represent a homogeneous study group in any sense of the word. Five were smokers and one subject was taking digitalis. For his conclusions and application of statistics, Anderson used average values, even though the ranges of results among the test groups overlapped in some cases.

Additionally, in order to produce the observed effects, patients were administered CO concentrations of 50 and 100 ppm, which would be expected to result in COHb levels of about 8% and 15%, respectively. However, the COHb levels he measured were in the range of only 3% and 4.5%.

It generally is conceded that carefully controlled inhalation experiments of 50 and 100 ppm CO would produce higher COHb levels in the blood. Therefore, the EPA concluded either the COHb levels in reality were higher, reflecting an error in blood chemistry analysis, or the patients did not actually breathe the stated concentrations of CO. Because the latter would justify the standard for a lower ambient concentration of CO, that explanation was accepted.

Then, by back-calculating from the most conservative model available (the Coburn model), the EPA surmised the ambient level of CO that imparts 3% COHb to the blood, under moderate exercise, was approximately 18 ppm. By applying a margin of safety to this concentration, the 9 ppm standard once again was “justified”. The Clean Air Act stipulates the margin of safety is to be “adequate”, and there certainly is no question the difference between 9 ppm and 18 ppm qualifies as adequate!

The problems surrounding the Anderson study led to two important statements by reviewers. The first, made by Dr. Vernon Benignus, is very revealing: “The statistical tests used in the study… .would have tended toward showing a significant effect even if none were present…” (3)

The second is equally revealing, albeit more provocative, and is taken from a 1982 letter to EPA administrator Ann Gorsuch from the chairman of EPA s hand-picked Clean Air Scientific Advisory Committee